Case No: 201303323 C2
Neutral Citation Number: [2015] EWCA Crim 1620
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
HIS HONOUR JUDGE BARTLE QC
T20120240
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 October 2015
Before :

LADY JUSTICE SHARP
MR JUSTICE WILKIE
and
MRS JUSTICE LANG
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Between :

	C-T AVIATION SOLUTIONS LTD	Appellant	
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	REGINA (HEALTH AND SAFETY EXECUTIVE)	Respondent	

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Mr Prashant Popat QC (instructed by Kennedys Law LLP) for the Appellant
Mr Andrew Marshall (instructed by HRJ Foreman Laws LLP) for the Respondent

Hearing date: 21 July 2015
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Judgment
Lady Justice Sharp: 
Introduction
1.	On 13 June 2014 C-T Aviation Solutions Ltd, the appellant, was convicted after a trial at the Crown Court at Luton of two Health and Safety Offences: (i) failing to discharge the duty under Section 3(1) of the Health and Safety at Work Act 1974 Act (the 1974 Act), contrary to Section 33(1) (a) of the 1974 Act (Count 4); and (ii) contravening regulation 11(3) of the Construction (Design and Management) Regulations 2007 (the 2007 Regulations) contrary to Section 33(1) (c) of the 1974 Act (Count 5).
2.	A co-defendant, London Luton Airport Company Operations Limited, ‘LLAOL’, was convicted of (i) failing to discharge the duty under Section 3(1) of the 1974 Act contrary to Section 33(1) (a) of the 1974 Act (Count 1) and (ii) contravening regulation 3(1)(b) of the Management of Health and Safety at Work Regulations 1999  (Count 2) and (iii) between 30 September 2009 and 25 May 2010 contravening a requirement imposed by an improvement notice served under section 21 of the 1974 Act contrary to section 33(1)(g) of the 1974 Act. 
3.	On 18 October 2013, the appellant was fined £70,000 and ordered to pay £30,000 costs on Count 4. No separate penalty was imposed on Count 5. LLAOL was fined a total of £75,000 and ordered to pay £197,595 costs. 
The Ground of Appeal
4.	At the close of the prosecution case both defendants submitted that there was no case to answer on any of the counts on the indictment on a number of grounds.  It is not suggested that the judge made any error in law in relation to that application, either as to the test to be applied on an application of no case, or as to the law relating to the offences charged. This appeal, brought with the leave of the full court, is confined to one point: which is that the trial judge was wrong to refuse the submission of no case to answer made by the appellant on both counts, as there was no or no sufficient evidence of material risk.  We are not persuaded the judge was wrong, and would dismiss this appeal. 
Factual Background
5.	LLAOL is the operator of Luton Airport. The relevant parts of Luton Airport, are situated on private land which LLAOL leases from the local Borough Council. The appellant is a small civil engineering design company that specialises in traffic management designs for UK airports. 
6.	The appellant produced design work for LLAOL in relation to some different proposals for redevelopment at Luton Airport over a number of years. But these criminal proceedings arose as a result of work done by the appellant for LLAOL in 2008-9 in relation to changes in pedestrian and vehicular arrangements at Luton Airport which were made following the terrorist attack on Glasgow Airport in June 2007. 
7.	After that attack, security measures were required at UK airports to prevent similar attacks on airport terminal buildings. These measures included the requirement that airports restrict access to all public vehicles from entering within 30 metres of passenger terminal buildings where practically possible. The appellant had already been instructed to produce concepts and scheme drawings for what was known as Project Zebedee, which involved the making of short-term improvements to Luton Airport (to relieve serious traffic congestion amongst other things); and the exclusion zone, which these security measures now required, was incorporated into its redesign of the Central Terminal Area (the CTA). 
8.	Work began on the redesigned scheme in October 2008 and was completed by March 2009. It included the placing of security bollards round the CTA. This in turn displaced certain functions, including the area where passengers were dropped off (the Drop off Zone or DOZ) from alongside the CTA. 
9.	Before the displacement of the DOZ to its new location, passengers or other pedestrians dropped off in the DOZ had been able to walk directly to the CTA without encountering traffic or crossing a road. However, after the relocation of the DOZ (to where the short-term car park had been) such pedestrians and passengers now had to cross an access road (the access road) in order to get to and from the CTA.  
10.	The access road linked the CTA roundabout and the undercroft of the terminal. In its original layout, it had two crossing points (it needed to be crossed by pedestrians walking between the Terminal and the short-term car park) located near the CTA roundabout. These were informal crossings in the sense that they did not include features that regulated zebra crossings on public highways are required to have. The Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (the Pedestrian Crossing Regulations) for example stipulate amongst other things that they must be a minimum width of 2.4 metres; and have Belisha beacons, black and white lines, give-way lines a minimum of 1.1. metres from the black and white lines and zigzag markings, though the distance can be greater if the circumstances suggest it. These original crossings did not have zigzag markings, or give-way markings and had yellow and white lines/stripes.
11.	In the re-designed scheme, entrance into the access road was controlled by a barrier placed shortly after the CTA roundabout; and the access road was now used by the following vehicles: HGVs which needed to get to the undercroft of the Terminal to stock concessions and other facilities, vehicles going to the VIP valet parking area and taxis going to the taxi rank (the taxi rank occupied what was left of the former DOZ). Vehicles exiting via the access road towards the CTA roundabout included the VIP and taxi traffic, and all vehicles, both cars and buses, exiting from the DOZ.  
12.	Part of the appellant’s re-design included two crossing points on the access road. These were first located (in about December 2008) close to the CTA roundabout, but were relocated further along the access road in February 2009 after it became apparent that their position – close to the access barrier - caused traffic to queue on to the CTA roundabout. We shall call one of those crossings, in its February 2009 location, the incident crossing (as it was called at trial). The other new crossing point was near the entrance to the undercroft. 
13.	Both of the new crossings, including the incident crossing as constructed, were informal crossings in the sense already described. 
14.	The incident crossing had black and white lines (and a dropped kerb and tactile paving).  But it was 2 metres wide. It did not have any give-way lines, or zigzag lines or Belisha beacons. It had guardrails (which are not required for a regulated zebra crossing, but which are supposed to prevent corner cutting by pedestrians on to the crossing before the start of the black and white lines) but there was a gap between the end of those rails, and start of the black and white lines. 
15.	It was an agreed fact at trial that the throughput of Luton Airport was of the order of 8-9 million persons in 2008-9. It was also agreed that the traffic using the access road was relatively light in terms of volume and the environment at the incident crossing was characterised by low vehicle speed and low hourly flow (in the context of the provision of a pedestrian crossing) but also by high pedestrian flow, in which drivers would reasonably anticipate encountering pedestrians at the incident crossing. 
Mrs Whiting
16.	On 16 May 2009, Mrs Mary Whiting, who was then 79 years old, died when she was run over by an HGV lorry on the incident crossing. 
17.	Mrs Whiting was small (5 feet 2 inches) and used a walking stick. She had arrived at Luton Airport on an incoming flight. She was with her family, some of whom went to collect their car from an airport car park. Mrs Whiting and her granddaughter, Samantha Green, followed the pedestrian route from the CTA to the relocated DOZ.  This involved walking first in the direction of the CTA roundabout, before turning left to walk alongside the access road.  
18.	The footpath alongside the access road, and along which Mrs Whiting and her granddaughter walked, was fenced by guard rails to separate vehicles and pedestrians. The footpath led to the incident crossing. At the end of the footpath, a pedestrian coming from the CTA was required by the fencing to turn right (and onto the crossing). And this is what Mrs Whiting and her granddaughter did. 
19.	Mrs Whiting stepped on to the incident crossing shortly after her granddaughter because she was intending to cross the road, and was run over by an HGV (to her right) that had previously been stationary at the crossing. She tried to avoid the HGV by touching it with her right hand, and also by moving forward and to her left. However she could not escape from the advancing lorry. She was knocked over at about the driver’s area of the cab and run over by the offside wheels, suffering catastrophic injuries from which she died instantly. The accident was witnessed by a number of people who gave evidence for the prosecution in the form of statements that were read, or orally, at the appellant’s subsequent criminal trial.  
20.	The HSE then conducted an investigation into the safety of pedestrians at Luton airport, which led to its prosecution of the appellant and LLAOL in this case. 
21.	The accident was also investigated by the police. The driver of the HGV, Rosso Cassagrande was prosecuted by the Crown Prosecution Service for causing death by careless driving, but was acquitted in September 2010 after a trial at the Crown Court at Luton. At his trial, Mr Cassagrande said Mrs Whiting crossed the incident crossing in the lorry’s “blind spot” which prevented him from seeing her (there was no suggestion that his lorry was not fitted with the appropriate mirrors). He subsequently gave evidence for the prosecution to this effect at the appellant’s trial. At his criminal trial he said he had been stationary at the incident crossing for about 25 seconds before he started off. At the appellant’s trial he said he had been stationary there for 2 minutes and 23 seconds. 
The law  
22.	Given the narrow scope of this appeal, it is unnecessary to do more than outline the relevant law. 
23.	Section 3 of the 1974 Act imposes a duty on employers to conduct their undertakings in such a way as to ensure so far as reasonably practicable that persons not in their employment who may be affected thereby are not exposed to risks to their health and safety. A failure to discharge that duty is an offence under section 33(1)(a) of the 1974 Act. 
24.	Section 3(1) of the 1974 Act provides that: 
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.” 
25.	The offence, reflecting a failure to discharge the duty under section 3 (and section 2) of the 1974 Act lies in the failure to ensure safety, so far as is reasonably practicable. It is not primarily concerned with ascribing responsibility for the cause of an injury, and can just as well be committed where there has been no injury as when there has been an injury: see Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v The Queen  [2011] EWCA Crim 2015 at paras 13 and 14. 
26.	Whilst an injury therefore may lead to an HSE inquiry (as it did in this case), the prosecution is not obliged to prove causation of the injury as a constituent part of the section 3 offence, albeit it may be relied on to show that there was the requisite risk (by showing what might happen), or that the defence of reasonably practicable precautions is not made out: see Tangerine at paras 12-18 (where the court noted at para 14, that an allegation which the prosecution is entitled to make, that the offence did in fact cause the relevant injury, may divert attention, unless care is taken, away from the real issue and on to the mechanics of the accident).    
27.	The source of the risk to safety must be the undertaking conducted by the employer, and the risk must be a material one, in that it must be a real, as opposed to a trivial, fanciful or hypothetical one: see R v Porter [2008] EWCA Crim 1271, [2008] ICR 1259 at para 16 and R v Chargot [2009] 1 WLR 1, where Lord Hope said at para 27 that: 
“…when the legislation refers to risk 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 an employer to create a safe working environment….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 word “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.” 
28.	Once the prosecution has proved (i) the existence of the relevant material risk, (ii) that the risk was to non-employees who may be affected by the undertaking and (iii) that the risk is materially related to the undertaking conducted by the defendant (“thereby”) then the burden shifts to the defendant to show if it can (on the balance of probabilities) that it took all reasonably practicable steps to eliminate or reduce the risk. (See section 40 of the 1974 Act which places on the defendant a reverse onus of proof on the issue of reasonable practicability (in the words of section 40, that “it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement.”)).
29.	The 2007 Regulations impose specific duties on a designer (as so defined). The principal duty is to be found in Regulation 11(3) which requires a designer when preparing or modifying a design which may be used in construction work, to avoid foreseeable risk. A contravention of that Regulation (a Health and Safety Regulation) is an offence under section 33(1)(c) of the 1974 Act.  
30.	Regulation 11(4) of the 2007 Regulations provides that in discharging the duty in paragraph (3), the designer shall (a) eliminate hazards which may give rise to risks; and (b) reduce risks from any remaining hazards, and in so doing shall give collective measures priority over individual measures. 
The trial
31.	It was common ground at trial (i) that the appellant was an employer within the terms of the 1974 Act and a designer within the terms of the 2007 Regulations; (ii) that its undertaking included the design of the road layout of the CTA and the supervision of the construction of the modified CTA and (iii) that persons other than employees [who were affected thereby i.e. by its design and supervision of the construction] included members of the public.  
32.	It was also common ground that for both counts 4 and 5, the prosecution had to prove that by the conduct of its undertaking, the appellant had created a material risk; and that if the jury were not sure that there was the requisite material risk (to the safety of members of the public created by the conduct of the appellant’s undertaking) in relation to count 4, they would have to acquit on count 5 as well. To the extent that the issues in relation to material risk on both counts were the same, it follows that we can confine our considerations and this appeal (as have the parties) to the issue of material risk as it arose in relation to count 4. 
33.	The prosecution case in relation to material risk in broad summary was as follows. 
34.	The appellant failed to design the CTA generally, and the incident crossing in particular, in a way that ensured the safety of members of the public, to the extent that was reasonably practicable. 
35.	Pedestrians and vehicles were brought together at the Airport, which was on private land. They were present to advance, and as part of, the Airport’s undertaking. There was a material risk of a collision between a vehicle and a pedestrian; which if it eventuated would cause serious injury or death. And this risk of collision arose because of the appellant’s and LLAOL’s failure to segregate pedestrians from moving vehicular traffic and/or minimise (to the extent that was reasonably practicable) the risk to pedestrians. 
36.	The prosecution identified a number of areas at Luton airport where it said a material risk to pedestrians existed. These were the CTA including the roundabout area, the fourth lane of the (relocated) DOZ, the second crossing on the access road, and the incident crossing. 
37.	Its case on these areas – which it called evidence to support - was as follows. 
38.	In relation to the CTA area, before the redesign, vehicles would stop on the roundabout, people would get out of their cars and then make their way to the terminal; and pedestrians would also make their way onto the roundabout from the terminal, taking the shortest visible route, because of a lack of appropriate guard rails/fencing, route-planning and traffic management. This was a significant hazard to pedestrians, which the defendants knew about before the redesign, but the appellant’s redesign did nothing to prevent such behaviour. 
39.	The fourth lane of the DOZ was designed to permit the discharge of passengers (as well as being a route through the DOZ). Mini coaches normally load and unload passengers from the nearside of the vehicle. However, the appellant’s design of the fourth lane required, by its specific lane designation,  mini coaches to park alongside (parallel to) the right-hand side of the lane (offside). This meant that passengers disembarking from the vehicles nearside would step directly into the lane itself with no protection from passing traffic. This created a material risk of pedestrians being hit by moving vehicles, one that was both unnecessary and readily avoidable. 
40.	The second pedestrian crossing on the access road principally linked the CTA to the short-term car park that lay beyond the DOZ. The appellant’s design was such that it was next to the undercroft of the terminal – which was subject to traffic difficulties; so that lorries were permitted to reverse up the undercroft ramp and encroach on to the second pedestrian crossing (and were observed doing so). 
41.	In relation to the incident crossing, the prosecution’s primary case was that traffic should have been segregated from pedestrians to the maximum extent possible, and had that been done, pedestrians would not be crossing a vehicular access road; and a number of suggested routes were identified. Its secondary case was that if segregation could not reasonably practicably be achieved, then any crossing built had to eliminate risk to pedestrians so far as reasonably practicable. In this respect,  a number of criticisms were made of the incident crossing as built: 
i)	The absence of give way lines, which should have been present and a distance from the crossing itself (at least the 1.1 metres specified minimum distance in the Pedestrian Crossing Regulations). The purpose is to keep waiting vehicles a distance back from the crossing so that a greater area is protected for pedestrians and so vehicles (particularly HGVs) have a better vantage point before proceeding;
ii)	Crossing width: the incident crossing was 2 metres wide. This was narrower than designed (2.5 metres) and narrower than the minimum width of 2.4 metres specified in the Pedestrian Crossing Regulations. The crossing should have been wider because it is important to have as wide a crossing as possible given the expected capacity of the crossing (people and luggage); 
iii)	The ‘gap’ in the guard railings at the incident crossing. This was far wider than it should have been; and far wider (by 1.9 metres) than the crossing. This permitted pedestrians to enter the road but not on the crossing, or on any protected part of the crossing area; 
iv)	The (false) impression from the layout that pedestrians crossing from the terminal side were crossing a one-way road. The access road carried two-way traffic, but the absence of road markings tended to suggest it was one-way traffic coming from the CTA roundabout. From the terminal side, this impression was reinforced by a visible carriageway (and the direction of traffic on it) on the other side of the access road, beyond the incident crossing. There was a real risk therefore that pedestrians would not appreciate they were crossing a two-way road, and be at risk from traffic approaching from an unexpected direction; 
v)	The exit carriageway on the access road had a vehicular barrier in close proximity to the incident crossing. This meant a reasonable sized commercial vehicle, stopping at the barrier, would have the rear of the vehicle over the crossing itself; which ‘obliterated’ the view to approaching drivers of people already on the crossing.  
42.	The evidence relied on by the prosecution to support this aspect of its case included expert evidence from five witnesses: PC Andrews, a traffic officer and road traffic investigator, who attended at the scene of the incident; Graham Tompkins, an HSE Inspector; David Wonford, an HSE Specialist Inspector covering Workplace Transport Safety, Edmund Milnes, an HSE Specialist Inspector in relation to Human Factors and Ergonomics and Timothy Sterling, (Principal Consultant, Road Safety Group at the Transport Research Laboratory).  
The submission of no case to answer
43.	In considering the submission of no case to answer, the judge, naturally perhaps, focused his attention on the incident crossing, whilst recognising that the prosecution case on material risk was broader than that.  He rejected the defence submissions that no reasonable jury properly directed could conclude there was the requisite material risk. In his view that was not the only conclusion that such a jury could reach. Though there were considerable differences between the parties on the issues (which the judge identified and set out in detail); and indeed differences between some of the prosecution’s witnesses including their experts on various points, the judge accepted the prosecution’s submission that the issue as to whether there was a material risk or not was ultimately a matter for the jury. We think he was right to do so. 
44.	The principal argument made on behalf of the appellant below, as it has been to us, is that pedestrians crossing the road and colliding with vehicles is an incidence of everyday life that is tolerated by society; and in the absence of evidence that this ordinary risk was increased for a particular reason (relating to location for example) this could not be a material risk for the purposes of section 3 of the 1974 Act.  
45.	In R v Porter an appeal against the conviction of a headmaster of a school under section 3 of the 1974 Act was allowed (the court decided the judge was right to refuse a submission of no case, but should have withdrawn it at the close of the evidence). The prosecution was brought after a young child fell after jumping down some brick steps which were on a “rugged school site” with a non-purpose built building. The steps – which were well-constructed and unexceptional - joined two different playgrounds at different levels. Mr Popat QC for the appellant fastens in particular on certain observations made by Moses LJ at para 18, where giving the judgment of the Court, he said that “The fact that a young child might slip or trip or choose to jump from one height to a lower level is part of the ordinary incidence of everyday life.”  
46.	However, it is plain when the judgment is read as a whole, that the court in Porter was not purporting to depart from the statutory test or to put a gloss on it; and it is the statutory test, as explained at para 27 above, which must be applied. Further, the facts of the Porter case were in our judgment very different to this one. There the material risk was said to arise as we have said, in relation to some otherwise unremarkable steps in the grounds of a school, which had been there without incident for many years, where the posited risk was of children jumping down the steps and hurting themselves.  
47.	In this case, Luton Airport was situated on private land, and its road, parking and pedestrian system had recently been remodelled or redesigned by the appellant. Pedestrians there were either LLAOL’s “guests” or employees as part of its undertaking; as was vehicular traffic, for which roads and parking were provided. Pedestrians and vehicles were brought together on LLAOL’s land for the purpose of its undertaking; and the material risk created by the Airport’s undertaking was of “pedestrian and vehicular conflict” (in ordinary language, pedestrians being hit by moving vehicles). Breaking this down: the “hazard” was that of moving vehicles and the “risk” was pedestrians being hit by them. 
48.	The prosecution contended the appellant was under duty to design a safe ‘system’; it failed to do this, and delivered a demonstrably unsafe system in a number of respects. Its straightforward point in relation to the incident crossing was that it was constructed in such a way that there was a risk (which eventuated) that people on the crossing would not be seen by lorries which used it on a regular basis; and there were simple features that could and should have been incorporated into the design that would have reduced or eliminated that risk. The combination of the overly wide gap in the railings when compared to the crossing width (coupled with the pedestrian direction of approach) together with the absence of give-way marks led to a situation where pedestrians trailing suitcases and the like, could enter the crossing on an unprotected area, and a lorry could be positioned where it could not see a pedestrian and both moved off at the same time. This was in truth, in our judgment, ample evidence of material risk. 
49.	Whilst it was open to the defence to contend that the fact that pedestrians crossing the road may collide with vehicles is an incidence of everyday life that is tolerated by society, and that this crossing was no different to many others, the issue in this case was whether this crossing, in this location, designed by the appellant with the particular features it had (and did not have) did or did not expose pedestrians to a material risk to their health and safety. We would add that we see considerable force in Mr Marshall’s argument that if the fact that similar risks to those prosecuted exist outside an employer’s undertaking, was a complete answer to a prosecution under section 3 of the 1974 Act, this would impermissibly rewrite the statutory test; and that the reliance on comparators (where standards of safety may be low or lower than those under consideration in a particular case) could lead, as Mr Marshall puts it, to a “race to the bottom”.
50.	There were of course points to be made for the appellant on all aspects of the prosecution’s case which the judge recognised. As we have already said, the prosecution experts did not agree about various matters.  It was said too that the access road was lightly trafficked; most users were regular visitors and professional drivers; the barrier slowed down vehicles, and the speed of vehicles was low; the visibility of the crossing for vehicles was excellent and a crossing had been in place on the access road for many years without incident. The defence contended the incident crossing as built was typical of other informal crossings, and was more than was necessary when the relevant factors such as speed of traffic, number of pedestrians were taken into account. 
51.	However, these and the many other arguments advanced were matters for the jury to consider when resolving what was here,  on the facts, quintessentially a question for them. 
52.	This appeal is, accordingly, dismissed.