Preparing Fatal Accident Prosecutions

Barry Berlin
Enforcement Policy/Discovery/Adaway
R v Hayes (2006) (animal passport case) where a
prosecution brought by a local authority under strict liability
provisions was dismissed as an abuse of process because
following Adaway
The potential counter arguments:
R (on the application of Mondelly) v Commissioner of Police
for the Metropolis
The presumption of regularity
London Borough of Wandsworth v Rashid
Disclosure under Statute
• Section 2(3) of the CPIA states:
• “References to the prosecutor are to any person acting as
prosecutor, whether an individual or a body.”
Pre plea disclosure/common law
• R v DPP ,ex p Lee [1999] 2 All ER 737DC
The disclosure required by the 1996 Act is and is intended
to be less extensive than would have been required prior to
the 1996 Act at common law.
Disclosure under Statute
Trigger for Section 3 Disclosure
Section 3 Initial duty of prosecutor to disclose
which might reasonably be considered capable of
undermining the case for the prosecution against the
accused or of assisting the case for the accused,
R v H & C [2004] 2AC 134 HL
Section 32 of the Criminal Justice Act 2003, yet to take
effect, has amended s 3(1)(a) of the 1996 Act so as to
require primary disclosure of any previously
undisclosed material 'which might reasonably be
considered capable of undermining the case for the
prosecution against the accused or of assisting the
case for the accused'. Whether in its amended or
unamended form, s 3 does not require disclosure of
material which is either neutral in its effect or which is
adverse to the defendant, whether because it
strengthens the prosecution or weakens the defence.
R v H & C [2004] 2AC 134 HL
Neutral material or material damaging to the defendant
need not be disclosed and should not be brought to
the attention of the court. Only in truly borderline
cases should the prosecution seek a judicial ruling on
the disclosability of material in its hands..”
3rd Party Disclosure see
Control and Management of Unused Material in the
Crown Court paras 2, 3 59 and 62.
Freedom of Information Act 2000
came into force
1st January 2005
Fatal Accident Investigation
Health and Safety at Work etc Act 1974 (the
1974 Act’)
Gathering of evidence 1
Interview staff and take statements (non exhaustive list):
1. Establish the employers name. If a company exact name and do
comprehensive company search.
2. If Unincorporated Association e.g. Club or other body of persons
consider who is the employer and whether the proceedings should be
brought in the name of individual members or in the name of the
Club. Is there a separate fund? See R v RL and JF (2008) CA
3. Who owns/operates the premises at which it occurred. If necessary
do land registry search.
4. Consider whether the accident within the course of employment (see
section 52 of the 1974 Act)
5. Approach the build up to the incident chronologically.
6. When did the accident occur.
7. What caused the accident. Has anything changed in work practices to
create risk e.g. merger, cuts not properly considered or
accommodated. Regulation 4 and 5 of the Management of Health
and Safety at Work Regulations 1999.
Gathering of evidence 2
Interview staff and take statements (non exhaustive list):
8. How did it occur
9. Who saw it happen.
10. What was the cause of death. Obtain a copy of the pathologist’s
report from Coroner
11. Interview all relevant witnesses. Remember that the employees may
seek to disguise or avid responsibility.
12. Have they seen health and safety policy and risk assessments for the
13. Have they been trained to do the job they are doing e.g. fork lift truck
use, banksman etc
14. Consider whether relevant regulations breached e.g. Management of
Health and Safety at Work 1999, Workplace (Health Safety and
Welfare) Regulations 1992, Personal Protective Equipment at Work
Regulations 1992 (all have approved Codes of Practice).
Gathering of evidence 3
Interview staff and take statements (non exhaustive list):
15. Expert Evidence may be required to assist in particular areas e.g. Medical
and engineer for carbon monoxide poisoning ore legionnaires disease and
HSE structural engineers for stacking racking collapse, or specialist inspector
for Workplace transport matters, specialist electrician for electrical failures
16. Obtain relevant documentation including risk assessments, training records
and health and safety policy as soon as possible to avoid potential for
contriving material post accident and pre dating it. Ensure than relevant risk
assessments and health and safety policy were on site and seen by staff.
Were the risk assessments generic or site specific. Are they suitable and
17. Had any similar accidents occurred before (very important to defeat
reasonable practicability or mitigation). If so what had been done in the
intervening period.
18. Was this a one off accident or does it illustrate systemic failure.
19. Consider Prohibition and or Improvement Notices.
20. Obtain Company accounts for last 3 years. If they show a loss check
directors level of remuneration and any large capital expenditure e.g. new
Police and HSE
Coroner’s Inquest
R v North Humberside Coroner ex p Jamieson
In Work Related Deaths-A Protocol for Liaison (September
2011, Police, HSE, Local Authorities, ORR
“10.3 Where the relevant enforcing authority has completed an
investigation, they will consider whether it is appropriate to
charge any health and safety offences at that stage, or to await
the result of the coroner’s inquest before making that decision.
In making the decision they will consult as appropriate with the
police, CPS, coroner, deceased’s family and any other person
who may have a legitimate interest.”
Draft Particulars
Chargot HL para 22
General Breach of Duty
non delegable duties
If the regulatory breaches can be included in the general
breach particulars this should be done.
Where the general breach covers the issues it is unwise to
add separate regulatory breaches as the Defence may wish
to plead guilty to the regulatory matters and claim abuse of
process if the prosecution seek to pursuer the general
Section 2
HSE v Spindle Select Ltd
In my opinion there is no need to refer specifically to the
examples set out in Sec.2(2). In any event they are not
exclusive as the introductory words to the sub-section
make clear.
Section 3
R v Board of Trustees of the Science Museum
“… In case A the loose object is in a position in which it might fall
off and hit a pedestrian. In that case there is a mere risk. In case B
the object in fact falls and exposes pedestrians to actual danger. In
case C the object falls and causes actual injury to a pedestrian.
The prosecution submits that exposure to risk in case A constitutes
a prima facie case under s 3(1). The defence submits that s 3(1)
only covers cases B and C.
The starting point must be the ordinary meaning of the language of
s 3(1). In our judgment the interpretation of the prosecution fits in
best with the language of s 3(1). In the context the word 'risks'
conveys the idea of a possibility of danger.”
Conduct Undertaking
R v Mara
R v Associated Octel Co Ltd CA Stuart Smith LJ (p1062j) stated
that the word ‘undertaking’ meant ‘enterprise’ or ‘business’
R v Associated Octel Co Ltd HL
The place where the activity takes place will in the normal case
be very important; possibly decisive.
“If he has a repair shop as a part of his plant, that is an
ancillary part of his undertaking. Likewise, as in this case, if he
has independent contractors to do cleaning or repairs on his
own premises, as an activity integrated with the general
conduct of his business. But not in the case of activities
carried on by another person entirely separately from his
own.” (emphasis added)
Potential Defences
Wrong Company
Frolic of his own
Reasonable Practicability
Section 40
“In any proceedings for an offence under any of the relevant
statutory provisions consisting of a failure to comply with a duty
or requirement to do something so far as is practicable or so far
as is reasonably practicable, or to use the best means to do
something, it shall be for the accused to prove (as the case may
be) that it was not practicable or not reasonably practicable to do
more than was in fact done to satisfy the duty or requirement, or
that there was no better practicable means than was in fact used
to satisfy the duty or requirement.”
R v Nelson Group Maintenance Services [1998] 4 All ER 331
“Moreover it is a sufficient obligation to place on the employer in order
to protect the public to require the employer to show that everything
reasonably practicable has been done to see that a person doing the
work has the appropriate skill and instruction, has had laid down for
him safe systems of doing the work, has been subject to adequate
supervision, and has been provided with safe plant and equipment for
the proper performance of the work.”
R v Gateway Foodmarkets
“The duty under each section is broken if the specified
consequences occur, but only if "so far as is reasonably
practicable" they have not been guarded against. So the
company is in breach of duty unless all reasonable precautions
have been taken, and we would interpret this as meaning "taken
by the company or on its behalf". In other words, the breach of
duty and liability under the section do not depend upon any
failure by the company itself, meaning those persons who
embody the company, to take all reasonable precautions. Rather,
the company is liable in the event that there is a failure to ensure
the safety etc. of any employee, unless all reasonable
precautions have been taken - as we would add, by the company
or on its behalf.
R v Gateway Foodmarkets
We prefer to conclude, therefore, that a failure at store
management level is certainly attributable to the
employer, whilst leaving open the question whether
the employer is liable in circumstances where the only
negligence or failure to take reasonable precautions
has taken place at some more junior level.
Independent Sub Contractors
Friskies Schedule
The Prosecution must scrutinise the Defence counter
schedule as it may wish to challenge the Defence basis of
plea in a Newton Hearing.
Newton Hearings
R v Chargot Ltd [2009] 1 WLR 1HL
“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.
(emphasis added)
R v Chargot Ltd [2009] 1 WLR 1HL
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
(emphasis added)
R v Chargot
Prima facie a breach of section 2(1) arises where an
employee is injured while he is at work in the workplace.
That fact in itself demonstrates that the employer failed
to ensure his health and safety at work. The same is true
where a person not in his employment but who may be
affected by the undertaking suffers injury.
Reasonable Foreseeability and Causation
R v EGS Ltd [2009] EWCA Crim 1942CA
that the duty on employers is not simply to take
reasonable care but to ensure health and safety so far as
is reasonably practicable.
Dyson LJ in R v EGS Ltd stated:
“27. In any event, it is strictly inapt to speak of a risk being
foreseeable. A risk is a present potential danger the existence of
which may or may not be appreciated: see per Steyn in R v Board
of Trustees of the Science Museum [1993] 1 WLR 1171, 1177F,
approved in Chargot at [20]. If the risk eventuates and an accident
occurs, then a question may arise in the context of a section 40
defence as to whether the accident was foreseeable or
unforeseeable: see R v H.T.M. Ltd [2006] EWCA Crim 1156. But it
is not relevant to the issue of whether the prosecution has proved
the existence of a material risk. It may be that the judge used the
word “foreseeable” inaccurately and that he used it
interchangeably with “would have been appreciated”… (see
however Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R
per Hughes LJ para 36 where it is made clear that forseeability of
danger is required to be proved to show material risk)
Causation is not an essential ingredient of the offence.
The prosecution did not have to establish that EGS
caused the accident, although in the present case, as
in most, they did in fact rely on a causal connection
between EGS’s acts and omissions as going to
establish risk. They merely had to prove that EGS
exposed persons not its employment to risks to their
health or safety. Nor do we understand the reference
to remoteness. It would appear that the judge was
treating the prosecution as if it were a civil claim for
damages for breach of statutory duty. But it is clear
from Chargot that this is the wrong approach.”
(emphasis added)
Requirement of Prosecution to Prove that there was a
foreseeable risk of injury/not a foreseeable accident
Tangerine Confectionary Ltd and Veolia ES (UK) Ltd v R
None of this, however, means that in a prosecution
under either section it is incumbent on the Crown to
prove that the accident which occurred was foreseeable.
That would convert the sections into ones creating
offences of failing to take reasonable care to avoid a
specific incident.
They command an enquiry into the possibility of injury.
They are not limited, in the risks to which they apply, to
risks which are obvious. They impose, in effect, a duty
on employers to think deliberately about things which
are not obvious. In most cases, absent the sort of time
factor which obtained in Baker v Quantum, .
. What is reasonably practicable no doubt depends on all
the circumstances of the case, including principally the
degree of foreseeable risk of injury, the gravity of injury
if it occurs, and the implications of suggested methods
of avoiding it. “ (emphasis added)
When matter reported, ensure time and log RIDDOR
If serving a Prohibition Notice or Improvement Notice on a Company
ensure that the Notice is addressed to the right Company and not on
its Company Secretary. Section 46(3) of the 1974 Act allows for
service of notices against companies to be served on Company
Secretary, this does not mean address the notice to the Company
Secretary who is a different legal person (see e.g. section 37 of the
1974 Act).
When gathering evidence remember “what is there to disclose”.
Remember Adaway and abuse of process potential. Take statements
under section 9 CJA 1967Medical evidence to show cause of death
usually from pathologist must be obtained in fatal case. In other cases
medical evidence to show extent of injury and prognosis.
Consider whether procedures such as identification or RIPA
authorisation required.
Attend inquest and be represented. Keep a note of the evidence. The
evidence and verdict could be very important (case against
Birmingham and Solihull NHS Trusts came to light at inquest when it
was discovered that vital information about the condition of the
resident in a respite centre had not been passed on to the trust
running the centre; may be a case for special verdicts e.g. accidental
death contributed to by neglect).
Evidential test and Public Interest test for Code of Practice for Crown
Prosecutors must be met and recorded as met (see importance in R v
Milton Keynes MC ex p. Roberts [1996] Crim LR 224 Ford parts case)
Include specifically in the tests consideration of Articles 6 and 8 of
European Convention on Human Rights.
If a Company obtain full search including names of directors and last
3 years published accounts. Do not accept accounts at face value
unless properly audited.
If an unincorporated association , check whether there is a separate
fund. If so prosecution can be pursued against either the
unincorporated association in its own name or in name of senior
members e.g. the Chairman, Treasurer etc see R v RF (2008)
9. Obtain previous convictions from OFT, HSE and Police.
10.Pre laying of information consider defences and potential mitigation
e.g. “not the right company”; “reasonable practicability” “Gave all the
training, plant and supervision”. .
11.If mistake by site manager or above less chance of Defence
succeeding on “reasonably practicable” test R v Gateway Food
Markets [1997] 3All ER 78 per Evans LJ p84. Consider again whether
ID in issue.
12.List the particulars and in Officers internal document headed “for the
attention of the Legal Department” under each particular refer to the
evidence in support from the specific witnesses and or from the
interview. Where death is involved ensure that you consider the
evidence to support causation direct or indirect. “Was this an
“avoidable accident” is often a good way of approaching that
13.Was this a systemic failure/or one off failure (e.g. giving child with milk
allergy breakfast cereal with milk protein.
14.Was this intentional, reckless or just careless?
15.Produce draft Friskies Schedule remember that the particulars should
not usually already be referred to in the informations. These are
matters which aggravate or mitigate the offence e.g. death, failure to
heed warnings, previous convictions
16. If the potential defendants include a Company officer consider the evidence in
respect of section 37 consent or connivance of or neglect. This is not strict
liability see neglect in Wotherspoon v HM Advocate 1978 JC 74 and R v P
Ltd and Another (2007) the Times 13th August 2007 (as to neglect-ought to
know enough rather than turning a blind eye, the question being whether if
the company officer did not have actual knowledge whether he should have
been put on inquiry by reason of the surrounding circumstances ao as to have
made inquiries concerning whether the relevant safety procedures were in
place. SEE ALSO R v Chargot paras 32-34
17. Informations must be laid in the name of an inspector appointed under
section 19 of the 1974 Act (see section 38). This function cannot be delegated
see R v Croydon Justices ex. p. WH Smith Ltd (2000) The Times 22nd
November DC.
18. Do not lay more informations just for the sake of it as it will detract from the
force of the case and as the matter is likely to go to the Crown Court as a fatal
accident will serve only to annoy the Judge. You only need to ensure that the
real issues are present and if they are covered by the general breach charge
do not repeat them in a separate charge as the Defence may plead guilty to
the Regulatory Offence and invite the Court to consider that proceeding on
the general breach is an abuse.
19.Where not guilty plea is entered and the Defence seek further
disclosure approach the request fairly in line with R v H and C s 3
does not require disclosure of material which is either neutral in
its effect or which is adverse to the defendant, whether because
it strengthens the prosecution or weakens the defence.
20.Where a guilty plea is entered and the Defence produce their own
version of the Friskies Schedule, check how far that differs from the
Prosecution list. If irreconcilable without a real risk of compromising
the case consider a Newton Hearing and notify witnesses that they be
required. Always ensure that witnesses whereabouts are kept up to
21.Crown required to prove forseeability of injury/danger in order to show
material risk (see Tangerine para 36)
22.Crown not required to prove causation of accident or forseeability of
23.In asbestos cases (no safe threshold) see R v WILLMOTT DIXON
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