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Session 2008 - 09 Publications on the Internet Judgments PDF Print Version 
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| Judgments - R v Chargot Limited (t/a Contract Services) and others (Appellants) (On appeal from the Court of Appeal Criminal Division)
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HOUSE OF LORDS SESSION 2008-09 [2008] UKHL 73 on appeal from: [2007] EWCA Crim 3032 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE R v Chargot Limited (t/a Contract Services) and others (Appellants) (On appeal from the Court of Appeal Criminal Division) Appellate Committee Lord Hoffmann Lord Hope of Craighead Lord Scott of Foscote Lord Brown of Eaton-under Heywood Lord Neuberger of Abbotsbury Counsel Appellants: Richard Lissack QC Ben Compton Maya Lester Kate Edwards (Instructed by Keoghs LLP) Respondent: Tim Horlock QC Richard Matthews Jamas Hodivala (Instructed by Holdens) Hearing dates: 5 and 6 NOVEMBER 2008 ON WEDNESDAY 10 DECEMBER 2008 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE R v Chargot Limited (t/a Contract Services) and others (Appellants) (On appeal from the Court of Appeal Criminal Division) [2008] UKHL 73 LORD HOFFMANN My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives, with which I agree, I too would dismiss these appeals. LORD HOPE OF CRAIGHEAD My Lords, 2. On 10 January 2003 Shaun Riley was working in the course of his employment with the first appellant, Chargot Ltd, at Heskin Hall Farm, near Chorley in Lancashire. Extensive works were being carried out on the farm, which was owned by the Ruttle Group of companies. The second appellant, Ruttle Contracting Ltd, a member of the group, was the principal contractor. The third appellant, George Henry Ruttle, was a director of the first appellant. He was also the second appellant’s managing director. The works included the construction of a car park. This required the excavation from the site of a quantity of topsoil. A dumper truck was then used to move the spoil over a distance of about 500 yards to a depression in a field, beside which a ramp had been created to provide the dumper truck with a means of access. 3. During the previous day and for part of the morning on the day in question the dumper truck was driven by another employee. But he left the farm after receiving a telephone call telling him that his mother had been injured in a road accident. Shaun Riley was asked by the foreman to take over the driving of it. He made two trips carrying spoil from the car park to the depression without incident. While he was making a further trip that afternoon he met with an accident. The dumper truck tipped over on its side and he was buried by the load of spoil that he was transporting. It was some time before he could be pulled out, and attempts to revive him were unsuccessful. He died the following day in hospital. 4. The investigation which followed the accident revealed that there were various shortcomings in the health and safety organisation at the farm. But there were no witnesses to the accident, and the precise cause of it was never established. The dumper truck itself had no defects, and it was fitted with a seat belt. Unfortunately Mr Riley was not wearing the seat belt at the time of his accident. 5. Criminal proceedings were brought against the first appellant under section 33(1)(a) of the Health and Safety at Work etc Act 1974 alleging a breach of section 2(1) of the Act. The case against it was that it had failed to ensure, so far as was reasonably practicable, the health and safety at work of its employees. As the operations were under its control the second appellant was also prosecuted. In its case the allegation was that there had been a breach of section 3(1). This was because it had failed to conduct the undertaking in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who might be affected thereby were not exposed to risks to their health and safety. The third appellant was prosecuted under section 37 of the 1974 Act in respect that, through his connivance, consent or neglect, he had caused the second appellant to commit a breach of section 3(1) in failing to ensure, so far as was reasonably practicable, that persons not in its employment were not exposed to risks to their health and safety. In each case the particulars of the offence identified the date and place where these risks were said to have arisen, and they said that this was in relation to the driving or use of dumper trucks. In their defence the appellants maintained that they had done everything that was reasonably practicable to ensure the health and safety of persons working on the site, including Mr Riley. 6. On 10 November 2006 the appellants were found guilty of the charges that had been brought against them. The first appellant was fined £75,000 and ordered to pay £37,500 costs. The second appellant was fined £100,000 and ordered to pay £75,000 costs. The third appellant was fined £75,000 and ordered to pay £103,500 costs. They were granted leave to appeal against both conviction and sentence. On 13 December 2007 the Court of Appeal, Criminal Division (Latham LJ, Gibbs and Jones JJ) dismissed the appeals [2007] EWCA Crim 3032; [2008] ICR 517. 7. The principal issues in the appeal were directed to the way in which the case for the prosecution had been presented to the jury. In simple terms, the prosecution based its case against the first and second appellants on the proposition that it was sufficient for it to identify and prove a risk of injury arising from a state of affairs at work. The contention for the appellants was that it was for the prosecution to identify and prove particular acts or omissions consisting of a failure or failures to comply with the duties laid down in sections 2 and 3 of the Act respectively. The Court of Appeal held that the policy of the 1974 Act was to impose a positive burden on employers, rather than simply disciplining them for the breach of specific obligations. That being so, the prosecution was entitled simply to point to a state of affairs as amounting to a breach of the statutory duty: paras 22 and 23. In this case the relevant risk was the risk of injury caused by driving the dumper truck. That this was a real risk, as opposed to a purely hypothetical one, was established by the fact that there was an accident. That was sufficient to justify the requirement that the first and second appellants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk: para 26. 8. The case against the third appellant was that he was directly involved in the works, as he gave specific instructions as to how they were to be performed. He had signed a statement in December 2004 in which he said that his involvement in the project at Heskin Hall Farm was considerable, that he ran the job and that he made most of the decisions. It was submitted on his behalf that the judge gave no guidance to the jury as to how the words “neglect, connivance or consent” in the charge against him could be relevant to the facts of the case. But there was no submission that he had no case to answer, and the court said that the only sensible inference was that, if it was established that the company had committed an offence, he willingly allowed it to do so or knowingly turned a blind eye to it. The jury could not have been in any doubt about what those words meant in the context of this case: para 15 9. The Court of Appeal certified that the following points of law of general public importance were involved in the decision: “i. In proceedings against an employer under section 2 of the Health & Safety at Work etc Act 1974 is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty; ii. In proceedings against an undertaking under section 3 of the Health & Safety at Work etc Act 1974 is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty; iii. In proceedings against a person under section 37 of the Health & Safety at Work etc Act 1974 is it sufficient as regards the predicate offence under section 3 of the Act that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty.” The statutory provisions 10. The 1974 Act was designed to give effect to the recommendations of the Report of the Robens Committee on Safety and Health at Work 1970-72 (July 1972) (Cmnd 5034). Among its main recommendations was the revision and re-organisation of the statutory provisions dealing with safety and health at work within the framework of a single comprehensive enactment. It recommended that there should be a new statute which should be primarily enabling in character. It should be limited to matters that would not require frequent amendment but would provide a foundation for a practical and efficient code of occupational health and safety: para 127. The law as it then stood lacked any central statement of general principle governing the wide variety of detailed provisions on specific matters, which were spread over a number of main statutes and a host of subordinate statutory instruments: para 128. So it recommended that the general principles of safety responsibility and safe working should be embodied in a statutory declaration which would set all of the detailed statutory and other provisions in a clear perspective, and that the Act should begin by enunciating the basic and over-riding responsibilities of employers and employees: para 129. 11. Part I of the 1974 Act, in which all the provisions that are relevant to this case appear, is designed broadly to follow these recommendations. It begins with a preliminary section which sets out the general purposes of that Part. Section 1, so far as relevant to this case, provides: “(1) The provisions of this Part shall have effect with a view to - (a) securing the health, safety and welfare of persons at work; (b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work. …(3) For the purposes of this Part risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them.” 12. Sections 2 to 7 set out a series of general duties for the achievement of those purposes. The provisions that are relevant to this case are in sections 2 and 3. So far as relevant they provide as follows: “2(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular - (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far is reasonably practicable, the health and safety at work of his employees; (d) so far as is reasonably practicable as regards any place of work under the employer’s control the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e) the provision and maintenance of a working environment for his employees that is, so far as it reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. …3(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 thereby exposed to risks to their health and safety. …"13. The primary means of enforcing these provisions is through a system of inspection. As the Robens Committee recommended in para 261 of its report “Safety and Health at Work” (1972) (Cmnd 5034), the Act provides a means for ensuring that practical improvements are made and preventative measures adopted to promote occupational health and safety. Various powers are given to the inspectors appointed under the Act. These include powers of entry and investigation: section 20. Improvement notices may be served if an inspector is of the opinion that a person is contravening the statutory provisions or has done so and is likely to do so again: section 21. Section 47(1) provides that nothing in Part I of the Act is to be construed as conferring a right of action in any civil proceedings for any failure to comply with any duty imposed by sections 2 to 7. A note to this section in Current Law Statutes explains that the policy of the Act was not to create any new liability for personal injury pending the report of the Pearson Commission on civil liability and compensation for civil liability, leaving the position as regards breaches of any existing statutory provisions unaffected. But the Act provides for the imposition of criminal sanctions. 14. Section 33 sets out the offences that may be committed under Part I of the Act. It provides inter alia: “(1) It is an offence for a person - (a) to fail to discharge a duty to which he is subject by virtue of sections 2 to 7.” Section 37(1), which applies to offences by bodies corporate, provides: “(1) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” The “relevant statutory provisions” to which section 37(1) refers include the provisions of Part 1: section 53(1). Section 40 deals with the onus of proving the limits of what is reasonably practicable. It places the onus of proof of compliance with any duty or requirement which is qualified by those words on the defence. This is the position where compensation is sought for a breach of provisions such as section 29(1) of the Factories Act 1961, which provided that every place at which a person has to work shall, so far as is reasonably practicable, be made and kept safe for any person working there (now repealed and replaced by regulations 5, 12, 13 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004): see Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107. Section 40 avoids leaving this important issue to implication by providing expressly where the onus lies. The issues 15. Mr Lissack QC for the appellants identified the central issue at the outset of his argument. He said that it was for the prosecution to prove the acts and omissions by which it was alleged there had been a breach of duty. It was not enough for it simply to assert that a state of affairs existed which gave rise to risk to health or safety. He said that this proposition applied equally to the third appellant, as the offence alleged against him depended on proof that the body corporate of which he was the managing director had committed an offence under one of the provisions in Part I. But in his case the prosecution had also to identify and prove a state of facts of which he should have been aware and which should have put him on his inquiry. He submitted that these provisions should be read in a way that was compatible with the presumption of innocence that was guaranteed by article 6(2) of the European Convention on Human Rights. Account must be taken of the reverse burden which section 40 imposed on the accused and of the penalties that may be imposed on an individual. They had recently been increased to up to two years’ imprisonment and an unlimited fine when convicted on indictment: Health and Safety (Offences) Act 2008, section 1(1) and (2) and Schedule 1. To be proportionate the prosecution must bear the overall burden of proof. 16. As the argument developed it seemed to me that Mr Lissack’s primary submission raised issues about prosecution practice as well as issues of statutory interpretation. The starting point must be to determine what the prosecution must prove in order to show that, subject to issues about reasonable practicability, an offence has been committed. This is an issue of statutory interpretation. The scope of the duties that sections 2(1) and 3(1) prescribe must be identified. Then there is section 37(1). The question is what more must be proved to establish that the officer has committed an offence. An answer to these questions will still leave open issues as to what further particulars, if any, the prosecution must give in the interests of fairness when a prosecution is brought. Mr Lissack said that guidance was needed on this point. The answers to these various questions must then be applied to the facts of this case to determine the outcome of the appeals. The scope of the duties 17. The first issue is to determine the scope of the duties imposed on the employer by sections 2(1) and 3(1). In both subsections the word “ensure” is used. What is he to ensure? The answer is that he is to ensure the health and safety at work of all his employees, and that persons not in his employment are not exposed to risks to their health and safety. These duties are expressed in general terms, as the heading to this group of sections indicates. They are designed to achieve the purposes described in section 1(1)(a) and (b). The description in section 2(2) of the matters to which the duty in section 2(1) extends does not detract from the generality of that duty. They describe a result which the employer must achieve or prevent. These duties are not, of course, absolute. They are qualified by the words “so far is reasonably practicable". If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it. 18. This method of prescribing a statutory duty was not new. As Lord Reid explained in the opening paragraphs of his speech in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, the steps which an employer must take to promote the safety of persons working in factories, mines and other premises are prescribed by a considerable number of statutes and regulations. Sometimes the duty imposed is absolute. In such a case the step that the statutory provision prescribes must be taken, and it is no defence to say that it was impossible to achieve it because there was a latent defect or that its achievement was not reasonably practicable. In others it is qualified so that no offence is committed if it was not reasonably practicable to comply with the duty. Sometimes the form that this qualified duty takes is that the employer shall do certain things: see, for example - and there are many that could be cited - section 48(1) of the Mines and Quarries Act 1954 which provided that the manager of every mine must take such steps by way of controlling the movement of strata within the mine and supporting the roof and sides of the working place as might be necessary for keeping it secure, and regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) which lays down a series of measures that must be taken with regard to dangerous parts of machinery. Sometimes it is that he shall achieve or prevent a certain result. Section 29(1) of the Factories Act 1961, which was considered in Nimmo, took that form. So too do sections 2(1) and 3(1) of the 1974 Act. It is the result that these duties prescribe, not any particular means of achieving it. 19. Examples can be found in the cases to demonstrate that this is how these provisions have been applied in practice. In Lockhart v Kevin Oliphant Ltd 1993 SLT 179 the respondent was charged with a contravention of sections 2(1) and (2) and 33(1)(a) of the 1974 Act. One of its employees was electrocuted and died when a street lamp that he was erecting touched an overhead power line. The sheriff acquitted the respondent, holding that the Crown had not established a sufficient case against it because the respondent was entitled to rely on plans and the site engineer’s marking of the location of the lamp post. His decision was held by the High Court of Justiciary to be erroneous. Lord Justice Clerk Ross said at p 183E that the fallacy in the sheriff’s approach was that he treated the words “so far as is reasonably practicable” as if they were part of the offence. He then added this explanation at p 183F: “Section 2(1) of the Act of 1974 is clearly intended to secure that a stated result is achieved, namely, the health, safety and welfare at work of all the respondent’s employees. Once it is established that that stated result was not achieved, a prima facie case of breach of statute arises, and in terms of section 40 the onus is on the respondent to prove that it was not reasonably practicable to do more than the respondent did to satisfy the statutory duty.” In R v Associated Octel Co Ltd [1994] 4 All ER 1051, 1063a, where the allegation was that there had been a contravention of section 3(1), Stuart-Smith LJ said: “If there is a risk of injury to the health and safety of the persons not employed by the employer, whether to the contractor’s men or members of the public, and, a fortiori, if there is actual injury as a result of the conduct of that operation there is prima facie liability, subject to the defence of reasonable practicability.” 20. In R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 it was recognised that this result-based approach is consistent with the general purpose of the Act. The appellants were convicted of failing to conduct their undertaking in such a way as to ensure, so far as was reasonably practicable, persons not in their employment were not exposed to risks to their health and safety. One of their buildings contained two cooling towers which, when inspected, were found to contain the bacteria which causes legionnaire’s disease. No-one had actually succumbed to that disease, but there was a risk to health and safety and the prosecution’s case was that prima facie there was a breach of section 3(1) because the appellants had failed to ensure that persons not in their employment were not exposed to that risk. The appellants contended that no actual risk to the public had been established. But Steyn LJ said at p 1177G-H that the ordinary meaning of the word “risks” supported the prosecution’s interpretation that the section was concerned with the possibility of danger: “The adoption of the restrictive interpretation argued for by the defence would make enforcement of section 3(1), and to some extent also of sections 20, 21 and 22, more difficult and would in our judgment result in a substantial emasculation of a central part of the Act of 1974. The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred.” 21. 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. Prosecution practice |
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