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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kelly & Anor v R [2005] EWCA Crim 1061 (05 May 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1061.html Cite as: [2005] EWCA Crim 1061

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL APPEALS DIVISION)
ON APPEAL FROM THE HONOURABLE MRS JUSTICE HALLETT
IN THE CROWN COURT AT TRURO

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th May 2005

Auld LJ:

Introduction

1. On 30^th July 2003, before The Honourable Mrs Justice Hallett and a jury in the Crown Court at Truro: Michael William Kelly was convicted of manslaughter, by negligence so gross as to be criminal, of Nathan Pringle, a four year old boy, at a caravan site owned and operated by Trevella Caravan Company Limited ("Trevella") at Newperran in Cornwall; and Alan Geoffrey Frear was convicted of failing to discharge a duty contrary to sections 33(1)(a) and 37(1) of the Health and Safety at Work Act 1974 ("the 1974 Act"), namely that, by his neglect, Trevella had failed to conduct the caravan site in such a way as to ensure, so far as was reasonably practicable, that Nathan, was not thereby exposed to risk to his health and safety. On the same day the Judge sentenced Mr Kelly to 12 months imprisonment suspended for two years and Mr Frear to a fine of £12,000 or 12 months imprisonment in default.
2. Earlier, on 21^st July 2003, Trevella had pleaded guilty before Hallett J in the same court and on the same indictment to failing to discharge the statutory duty by reference to which the charge of neglect had been alleged and proved against Mr Frear, and, on 31^st July 2003, it was fined £15,000.
3. Both appellants appeal against conviction by leave of the single Judge, which he gave in the light of the Judge's sentencing remarks (see paragraphs 30 – 32 below), which, in her firmly expressed interpretation of the evidence, are difficult to reconcile with the jury's verdicts.
4. The prosecutions arose out of the tragic death of a four year old boy, Nathan Pringle, on 10^th August 2001, while on holiday with his parents at Newperran Tourist Park ("Newperran"), a caravan site owned by Trevella. Mr Kelly was the manager at Newperran. Mr Frear was one of the directors of Trevella, and, though a chartered accountant, had sole overall responsibility for health and safety at Newperran.

The prosecution evidence

5. Nathan died as a result of falling into a septic tank in a field at Newperran, which was not technically part of the camp site and had become overgrown. The field had a barbed wire fence and a closed, but not locked gate. It had no signs to deter entry, and was seemingly used by holiday makers from time to time for walking their dogs. There was an issue at trial as to whether Mr Kelly and/or Mr Frear knew that some people used it for that purpose.
6. The tank had been constructed twenty or so years before, in 1980, with appropriate building regulation approval and without adverse comment from the local council after inspection. It comprised three interlinking chambers; the one into which the boy fell was 14 foot square and 6' 6" in depth, with a fluid depth of between 4' and 5', and had a two rectangular manhole covers of standard size and design, both, like other manhole covers nearby, weighed down with large stone blocks. At the time of its construction, such a septic tank was not required by law to have lockable covers, and later building regulations making it a requirement were not applied retrospectively. There were no warning signs about the tank or any fencing around it.
7. Newperran had a good safety record. However, there had been some previous trouble with the tank. Mr Daniels, an employee of a company responsible for periodically emptying the tank in the field, suffered an accident over two years before, in May 1999, while emptying the tanks. He said that a number of the covers were not seated properly on the rims and were held in position by heavy stones that had been placed on top of them. He described having stepped on one of them - covering a different manhole from that into which Nathan fell - and the cover just flipped up, causing him to fall partly into the tank, injuring his knee and ankle. He reported it to Mr. Tremayne, the managing director of his employing company, who telephoned someone at Newperran - he could not be sure if it was Mr Kelly - to report it. A number of fellow employees of Mr Daniels, each of whom cleared the tank from time to time, gave evidence critical of the state of the manhole covers in general, but none, it seems, made complaints that ever found their way to Mr Kelly or to Mr. Frear.
8. In May 2001, that is, about two or three months before the accident, Mr Frear made his annual risk assessment visit to Newperran, in the course of which he also went to the field in question and looked at the tank and its manhole cover. Though he did not attempt to lift up the covers to check their fit with the manhole rims, the covers seemed to be in good condition and properly secured in position over the manholes.
9. On 27^th July 2001, Mr Bibby, a specialist health and safety inspector employed by the local council, carried out a health and safety inspection of the camp site, following which, on 1^st August 2001, he wrote to Mr Kelly congratulating him on its good state.
10. Mr Daniels who made a number of visits to the site over the years to empty the tank in the field, was the last one to empty it before Nathan's accident, that is, seven days before, on 3^rd August 2001. He said that he checked the covers and, when he replaced them, did so as securely as possible.
11. Mr Kelly, on his uncontradicted evidence, checked the tank shortly after Mr Daniels had emptied it, and noticed nothing amiss.
12. Nathan's parents and his seven year old brother, Daniel, had holidayed at Newperran over a number of years and had always enjoyed it. Dogs were welcome and the field in question was one in which they had habitually walked their dog in the past.
13. The day of the accident was the last day of their holiday and, in the afternoon, while Mr and Mrs Pringle were packing up to go home, the two boys, with their parents' knowledge and approval took the family dog for a walk in the field. The evidence of the accident itself came solely from Daniel. On their arrival at the field, they entered through its unlocked gate; there was no-one else there. They went over to the tank where they began to jump on and off the big heavy stones on the manhole covers. He, Daniel, stood on one of the covers and Nathan stood on another. While he had his back to Nathan, he heard a splash and Nathan cry for help. He turned round and saw that the cover on which Nathan had been standing and Nathan had fallen into the tank.
14. Daniel ran back and told his parents, who ran to the field. There, Mr Pringle saw that one of the manholes was without a cover. He climbed in and brought Nathan out, still alive, but despite rapid attendance and attention by various emergency services, he died shortly afterwards.
15. On the evening of the day of the accident Mr Bott, an environmental health officer of the local council visited the scene. He formed the view that the manhole covers were inadequate in that they could easily be, and had been, lifted by vegetation so as to make them ill-fitting. He also complained of the lack of any warning signs and of a lock to the field gate. Whilst still at the scene, he directed immediate remedial measures to make the site safe, including the provision of heavy-weight lockable covers. He made no note at the site of any covers or manhole rims being corroded or otherwise defective. However, he took photographs of the covers of the various chambers, including the one into which Nathan had fallen.
16. On the following day a police diver entered the tank and recovered a number of items from it, including the manhole cover that had tipped and fallen in when Nathan stood on it. Its rim was intact and it was in generally good condition. The diver also recovered some other old manhole covers and pieces of masonry that had fallen into the tank, many of which, after they had been video-recorded, were thrown back. The cover that had given way under Nathan had been somewhat indistinctly photographed by Mr Bott on the evening of the accident and video-recorded by the police on the following day, and retained. However, no steps were taken at the time to test scientifically the possible mechanism of the accident, for example and at its most basic, to place the cover on the rim of its manhole to see whether it had a secure seating. In addition, the remedial work to the tank manholes ordered by Mr Bott, which was undertaken within a day or two, destroyed all potential evidence of the condition of the manhole rim at the critical time.
17. It was not until two or so months later, in October 2001, that Mr Bott inspected the cover retrieved by the police. His evidence was that it was made of pressed steel capable of supporting 2.5 tons and was slightly bent or warped, but not sufficiently to account for its falling into the tank. He said that the lip of the cover, designed to rest on the rim of the manhole, was full and intact. His complaint in the witness box was not so much that its weight bearing capacity was inadequate but that it could become ill-fitting and hence unstable on its rim through the intrusion and pressure of vegetation.
18. Mr Kelly, in interview, gave the following account. As manager of Newperran, he had overall responsibility for its day-to-day running and maintenance. From time to time he checked the levels of the solids in the tank in the field, which he understood to be part of his responsibility. He was not aware of any maintenance to the tank, or replacement of manhole covers or repair of manhole cover rims during his time as manager. The covers had heavy stones on them because, in one particularly wet year, the water in them rose so that it was in danger of lifting the covers. He always checked the tank after it had been emptied, and had always found the covers and the manhole rims in good condition. He never found any without stones on them. Sometimes he had found them not squarely seated in the manhole and had straightened them out. When he had checked the tank after Mr Daniel's last visit a few days before the fatal accident, all the stones were in place on the covers. He denied that the field was a recognised dog walking area for visitors to Newperran or that he had tacitly encouraged or permitted it.
19. Mr Frear, in interview, gave the following account. Although he was a director of Trevella and had overall responsibility for health and safety of the company's operations, including Newperran and another camp-site, his expertise was as an accountant, not as a health and safety specialist. Mr Kelly had immediate and day to day responsibility, with the assistance of two maintenance men, for the upkeep of Newperran. That included maintenance of the field in which the fatal accident occurred, although it was not actually part of the Newperran camp site. He was unaware of any concerns about or maintenance work on the tank. As part of his last annual risk assessment visit to Newperran in May 2001, he had visited the field and had not seen anything amiss with the tank or its covers. He had not lifted the covers or inspected the manhole rims, but had seen no need to do so, as the covers seemed to be in good condition and in place. Like Mr Kelly, he was unaware that that field had been used by camp-site visitors, for walking dogs or otherwise.
20. During the cross-examination of Mr Bott, Mr Ian Dixey, for Mr Frear, had put before the jury a brand new cover and rim of the same type and manufacture with which they were able to demonstrate a possible cause of the accident that, on the evidence – or lack of it – it was impossible to eliminate. The demonstration showed that, as long as three sides of the cover were supported, it would not fall. However, if one corner was not supported, although the majority of the cover would bear weight, if even light pressure was applied to the unsupported corner, the whole cover would rotate and fall.

The prosecution case and the issues

21. The prosecution provided the defence with written particulars of negligence against Mr Kelly on the charge of manslaughter, but which, with appropriate modifications, were equally appropriate to its case against Mr Frear of statutory neglect. These written particulars were not shown to the jury, but they were canvassed before them in the course of the trial both by counsel and the Judge. In addition to the critical complaints about the seating of the cover on the manhole rim and what the two men knew or should have known and done about it, there were separate particulars as to failure to prevent or discourage visitors to Newperran from entering the field in question, for example by locking the field gate, lack of warning signs, lack of fencing around the tank and failure to maintain. But the heart of the prosecution's case against Mr Kelly and Mr Frear was that they had been guilty respectively of gross negligence and neglect in failing to ensure that the cover in question was securely fitted on the manhole rim.
22. The main issues for the jury in relation to the charge of manslaughter against Mr Kelly were, therefore,: 1) as to how the accident occurred; 2) whether the septic tank, in particular its opening and cover, were in an obviously dangerous condition so as to give rise to the tipping of the cover and its falling into the tank; and 3) whether he was grossly negligent in not adequately securing the tank cover and/or in permitting visitors to Newperran, in particular, small children, to enter the field with the tank in such condition.
23. The main issues for the jury in the case of Mr Frear were much the same as the first two issues in the case of Mr Kelly, and 3) whether, given his overall responsibility for health and safety of Trevella's operations, including the field at Newperran where the tank was, his visit and inspection in May 2001 should have alerted him to the need for protective action so, as far as was reasonably practicable, not by his neglect to expose visitors like Nathan to the risk of falling into the tank.

The defence submissions and the Judge's rulings on them at the close of the prosecution case

24. At the close of the prosecution case there were two defence submissions. The first, by Mr Neil Ford QC on behalf of Mr Kelly, and Mr Ian Dixey, on behalf of Mr Frear, was that, because of the failure to preserve the scene of the fatal accident and the potential exhibits for scientific examination, the prosecution should not be allowed to rely on any of its evidence going to two of the particulars of neglect alleged, namely the defective condition of the manhole cover and/or the manhole rim on which it was seated and the appellants' awareness of that condition. The Judge rejected that submission, but said that the prosecution's failure in that respect had put the defence at a considerable disadvantage and that she would direct the jury accordingly. This is how she expressed herself in her ruling:

" … it is unfortunate to say the least, that the scene was not preserved, and exhibits, or items, upon which Mr Moore [Mr M… Moore, prosecuting counsel] places reliance were thrown back into the chamber; but I have to deal with the situation as it is, and it is, in my judgment, unrealistic to direct that the Crown should not be allowed to argue the case in the way that they wish to do. This evidence has been admitted. There is evidence, as Mr Moore has pointed out, from a number of different quarters about the condition of the lids, and it must be a matter of weight for the jury as to how they approach that evidence. It is very much an intrinsic part of the Crown's case.

I make it plain, however, that I shall direct the jury in strong terms that in my judgment this scene should have been preserved, and the failure to do so has put the defence at a considerable disadvantage. I shall also direct the jury that they would wish to be exceedingly cautious before accepting any arguments based on items that the prosecution – or the investigating teams – threw back into the chamber; so … I will direct the jury in strong terms, but not to the extent that the two of you required."

25. It is plain that when the Judge spoke in the first of those paragraphs about "the condition of the lids" she was using the words "lids" as shorthand for the condition of the covers and the manhole rims and as to what the appellants knew or should have known of it. It is also plain from the following passage at page 6C-H of the transcript of the Judge's summing-up, that she directed the jury as she said she would do:

"You will remember the submissions of Mr. Ford about whether or not it would be appropriate to draw the inference the Crown invite you to draw about what actually happened to lead to Nathan's falling into the septic tank. With the best of intentions maybe, the very surprising decision was taken to order alterations to the septic tank before any expert was given the opportunity to carry out an examination, or anyone, indeed, had even attempted to test the manhole covers as they fitted in the holes. No-one took measurements. Items which the Crown now argues are significant were thrown back into the chamber.

I must endorse Mr Ford's strong comments that it was extremely unfortunate, to say the least, that this scene was not preserved, despite the fact that, sadly, everyone knew that Nathan might die, and someone might be accused of causing his death. It has created enormous difficulties for the defence – the way in which the case has been investigated; so whenever the Crown invites you to draw an inference adverse to the defence, I direct you to bear those difficulties very much in mind."

26. The second submission, made by Mr Dixey on behalf of Mr Frear, was that he had no case to answer both on account of the failure of the prosecution to preserve evidence, the subject of the earlier joint submission, resulting in a lack of evidence as to the fit of the cover on the manhole rim at the material time and as to what, if anything, Mr Frear knew or should have known about it. The Judge, in rejecting that submission, repeated her observations of concern about the lack of preservation of evidence, but added that there was sufficient evidence upon which a jury could find that the manhole cover was "unsafe" and that Mr Frear should have known and done something about it. She said:

"… There is evidence, if accepted by the jury, that this defendant was under a duty to act in this specific area of health and safety; there is evidence that Mr Frear accepted overall responsibility for health and safety; there is evidence that he has carried out personally a risk assessment of the scene a matter of months before the accident; there is evidence, if the jury accept it, that at that time, given the evidence of the drivers and Mr Bott, and indeed the evidence of the accident to one of the drivers that has not been disputed, that when Mr Frear inspected those covers he should have appreciated the existence of an unsafe situation, and he should have acted accordingly."

27. Following the Judge's rejection of those two submissions, neither appellant gave evidence, though Mr Ford on Mr Kelly's behalf, put before the jury over 40 statements and letters stating his commitment to ensuring the safety of the site.

The Judge's summing-up

28. As we have indicated, after the Judge summed the matter up to the jury they convicted Mr Kelly of manslaughter and Mr Frear of the breach of statutory duty alleged. One matter that we should single out in her summing-up is her reminder to the jury of the various particulars of neglect relied upon by the prosecution against Mr Kelly, and by implication also applicable in large part to the case against Mr Frear. These particulars included, but went beyond the two critical allegations on which she had focused in her rulings at the close of the prosecution case (see paragraphs 24 and 26 above), namely those going to the condition of the seating of the cover on its manhole rim and as to what Mr Kelly and Mr Frear knew or should have known and done about it. Thus, at pages 9E-12G of the transcript of the Judge's summing-up, whilst emphasising to the jury the need for unanimity on any one of the particulars of neglect alleged, and stating in general terms what the prosecution had to prove in each case, she did not highlight or focus on those two critical allegations. Nor did she do so in the written directions that she also gave to the jury to be read with her summing-up. Otherwise, neither appellant can have any justified complaint about her directions of law or of her treatment of the evidence, the latter, if anything, somewhat sympathetic to the defence.

The Judge's sentencing remarks

29. In her sentencing observations, the Judge addressed certain remarks to each of the appellants indicating her interpretation of the jury's reasoning in returning the verdicts of guilty. Because of the potential conflict between the Judge's view of the effect of the evidence and the jury's verdicts on it, a conflict, upon which the appellants rely under both their main grounds of appeal, we reproduce much of what she said in those remarks.
30. To Mr Kelly, she said, at pages 4C- 5C of the transcript:

"… It seems that everybody who knows you, who has worked with you, who has visited the site, describes you in the same way – hard-working, incredibly conscientious, totally committed to the happiness and safety of your customers. …

Nothing, it seems, was ever too much trouble for you. If you had the slightest idea, in my judgment, that those covers were in a dangerous condition, you would have done something immediately. All the evidence indicates that health and safety of that site was your No. 1 priority; the safety of children was your No. 1 priority. You won awards for your approach to health and safety. This site, I am told, was one of the best-run sites in the country. I am entirely satisfied, therefore, that whoever Mr. Tremayne thought he spoke to, it cannot have been you, and that none of those complaints from the transport company got through to you.

Unfortunately, as Mr Moore put it, despite the fact that you ran the site so well, there was this forgotten field – not totally forgotten, because you would check to see if the tank needed emptying; you checked after the tank had been emptied. On the jury's verdict, in my judgment, your fault must have been in not realising that the covers were insecure, and in failing to appreciate that children might get into the field and play there.

31. To Mr Frear, the Judge said at pages 6G-7E:

"Mr Frear, had you not told the police in interview about your pre-season risk assessment you would not be sitting there now. You stand convicted because you did that extra bit, as a director, to try and protect your visitors; but, on the jury's verdict, you got it wrong. The case against you was always not that you knew the covers were in a dangerous condition, but that you should have done. I sentence you on the basis that you should have realised the cover was in an insecure position.

I take into account the fact that you are a chartered accountant and not someone experienced in maintenance or manhole covers, and I take into account the fact that these manhole covers, according to the manufacturer's instructions, were made for holes or sites such as this. They had on top heavy blocks of masonry to try and keep them down.

Generally, I also take into account the fact that you and your company entrusted the maintenance of the site to Mr. Kelly, albeit you accepted in interview retaining overall responsibility for health and safety. You were entitled to delegate to Mr. Kelly; he was a man with impeccable health and safety credentials until this dreadful day in August 2001. You, Mr Frear, were guilty of neglect on just one day in May 2001; …"

32. And to both appellants, the Judge said at 5D-6F:

"I am not satisfied that the covers were in a bad condition. I believe, having heard so much about the two of you, that had they been you would have noticed it. The jury's verdict must have been on the basis that the covers were insecure; and, as we saw from the demonstration by Mr Dixey and his instructing solicitor, only a slight deviation from the norm – from the normal way of fitting – could lead to the cover flipping, and someone as small and as vulnerable as Nathan falling in.

I bear in mind … that this field was not meant to be used; it was not technically part of the camp site. It had a barbed wire fence, and there was a gate. I also accept, Mr Kelly and Mr Fear, that you did not know that people still used the field, but the jury's verdict indicates that you should have known. I also accept that no-one had ever suggested that the company, or you, Mr Kelly, or Mr Frear, needed to do more by way of providing lockable covers, fencing off, signs, locks on the gate; nobody suggested it. I also bear in mind that you must have felt secure in the knowledge that the site was regularly inspected by the Health and Safety Inspectors, and you passed with flying colours. I have also noted that the manhole covers on the site were well maintained.

But throughout all this, Mr Kelly and Mr Frear, I must also have at the forefront of my mind the fact that the jury, by their verdicts, have given [sic] the risk of death in case of Nathan – in your case, Mr Kelly, the jury has decided that your conduct was so bad as to amount to gross negligence manslaughter, and your neglect, Mr Frear, sufficient to amount to criminal neglect.

It is, however, in my judgment, a very different situation from one where a manager or director deliberately flouts the Health and Safety Regulations or, … cuts corners to save costs; …This is not a case, in my judgment, of a defendant being indifferent to questions of health and safety, or of a defendant who just could not be bothered. On the contrary, both defendants before me, I am satisfied, took a great interest in trying to protect the safety of their visitors; and, Mr Kelly, you were, I accept, extraordinarily diligent, save for this one tragic area."

The grounds of appeal

33. We turn now to the grounds of appeal.
34. Both appellants in their grounds of appeal, relied on the fact that the Judge declined to withdraw the particulars relied upon by the prosecution in relation to the condition of the covers from the jury because of the prejudice to them resulting from the destruction of much of the critical potential prosecution evidence as to the condition of the manhole cover and its fit with the manhole rim rendered their trial unfair. On the latter aspect, Mr Ian Dixey, on behalf of Mr. Frear, relied upon R v Birmingham & Ors [1992] Crim LR 117 and R (Ebrahim) v Feltham Magistrates' Court; Mount v DPP [2001] 2 Cr App R, 23, DC.
35. The second and alternative ground, which is also common to both appellants, is that, on the evidence as a whole, there is a real doubt as to the safety of his conviction.

Submissions on behalf of the appellants

Mr Kelly's appeal

36. The prosecution case, as we have said, was based on the alleged gross negligence of Mr Kelly. The indictment was particularised against him in a number of respects, but in his closing submissions to the jury, prosecuting counsel, Mr Neil Moore, concentrated on two, namely whether Mr Kelly had failed to ensure that the septic tank's manholes were adequately and safely covered and/or whether he had failed to ensure maintenance of a system to achieve that.
37. Mr Ford concentrated, as he had in his unsuccessful submissions to the Judge at the close of the prosecution case and then to the jury on the evidence or lack of it, as to the condition of manhole cover and of the manhole rim, one with another, at the time of the accident. He submitted that there was no evidence upon which a jury, properly directed could be sure that there were defects either in the cover or the rim or as to their fit, which could have caused or contributed to the fall of the cover into the tank. He referred to the Judge's acknowledgment in her ruling as to the unsatisfactory failure of the authorities to preserve or examine at the time vital evidence as to the cause of the accident and to her repetition of those concerns in her directions to the jury (see paragraphs 24 and 25 above). He also drew attention to her remarks in sentencing that we have set out at paragraphs 30 and 33 above, in particular that: 1) if Mr Kelly had had "the slightest idea" that the cover or any of them was faulty, he would have done something immediately; 2) he had received no complaints about their condition; 3) his only fault "must have been in not realising that the covers were insecure and in failing to realise that children might get into the field and play there"; and 4) she was "not satisfied that the covers were in a bad condition", that "the jury's verdict must have been on the basis that the covers were insecure and" that, as the court had seen, "only a slight deviation from the norm … could lead to the cover flipping and someone as small … as Nathan falling in".
38. Mr Ford submitted that, whilst assessment of evidence is normally a matter for the jury, in the circumstances of this case the Judge, on her own reaction to it, should have withdrawn from the jury the critical issues as to the condition of the cover and the rim and their fit one with another at the material time, about which, given the lack of evidence, the only matter of which they could be sure was that the cover was in good condition. Alternatively and fortified by the Judge's sentencing remarks, he maintained that the jury could not, on such evidence as was before them, have reasonably concluded that the cover in question was in bad condition or that its seating on the manhole rim was insecure. He submitted, therefore, that the conviction of Mr Kelly for manslaughter was unsafe.

Mr Frear's appeal

39. Mr Dixey made much the same points in support of Mr Frear in respect of the charge of criminal neglect that he faced, which, however the prosecution particularised it, turned on whether, on his annual inspection of the site in May 2001, he should have noticed or been put on notice that the seemingly sound cover of the manhole was not seated securely on the manhole rim and should have done something about it.
40. Mr Dixey submitted, in a skeleton argument that he did not develop orally, that, given the "qualified" absolute nature of the offence committed by Trevella, something more than simple neglect or negligence had to be proved against Mr Frear to justify his conviction of the satellite offence under section 37. He suggested that it was only apt for a case where a company director has failed to set up any proper system of safety at all. He also sought to distinguish between neglect, the word used in the section, and the concept of civil negligence by submitting that the former denotes a positive failure to act, not a failure to recognise a risk, which is what the prosecution relied upon in this case.
41. Mr Dixey submitted that, in any event, Mr Frear's overall responsibility for health and safety in Trevella's operations did not, on the evidence or as a matter of common sense, impose any duty upon him personally to inspect each of the manhole covers at its sites, still less to lift ostensibly sound and properly placed covers to examine the soundness of their seating on their respective manhole rims. And he prayed in aid the Judge's sentencing remarks that the jury's verdict could not have been on the basis that the covers were in a bad condition, but must have been on the basis that the were insecure and that the slightest deviation from normal fitting could have led to such insecurity. On that characterisation by the Judge of the evidence, with which Mr. Dixey agreed, he maintained that no reasonable jury could have properly concluded that Mr Frear's failure to appreciate a risk on that single visit could rightly be categorised as criminal neglect by a person He added that there was nothing in the evidence to suggest anything that should have alerted Mr Frear to the problem on his visit and nothing to contradict his own account it appeared to him at the time.
42. Mr Dixey allowed for the possibility that the condition of cover, in the sense of the security of its seating on the manhole rim, could have worsened so as to become more apparent in the ensuing three months before Nathan's fatal accident, but met it by saying that there was no evidence upon which it could be shown or suggested that Mr Frear could have become aware of that in the meantime. He, like Mr Ford, ended in his submissions where he began, by emphasising that the jury never knew of the appearance or the condition of the manhole and its cover immediately before the accident because of the prosecution's failure to preserve and adequately record the evidence of it.

Submissions on behalf of the respondent

43. On the question whether the Judge should have withdrawn from the jury at the close of the prosecution case the issue of the condition of the covers and rims against both appellants and the ease of criminal neglect against Mr Frear, Mr Moore submitted, by reference to the prosecution evidence that we have summarised in paragraphs 6,-8, 10, 13, 15-18 and 19 above, her decision was correct. He submitted that, on that evidence: 1) there was, at least a prima facie case that the manhole cover in question presented a "fall-through" danger, even though the precise cause of it may have been unclear, and that, as that danger lay at the heart of the defence submissions of no case, the Judge was entitled to leave that matter with the jury; and 2) that there was also at least a prima facie case against each appellant that he had or should have had notice of the danger to render failure by them of steps to put it right grossly negligent in the case of Mr Kelly and a matter of criminal neglect on the part of Mr Frear.
44. As to the safety of the respective convictions of Mr Kelly and Mr Frear, Mr Moore relied upon on the Judge's clear and, so far as they went, correct directions of law and, at pages 9E-10C of the transcript of her summing-up, as to the need for unanimity on the particular form or forms of gross negligence or neglect on which they relied in Mr Kelly's and Mr Frear's cases respectively, if they were to return verdicts of guilty. He also relied upon her firm warnings to the jury about the difficulties for the defence in the prosecution's failure to preserve the evidence (see paragraph 25 above). He said that there was no reason to suppose that the jury ignored her directions. And as to her sentencing remarks, he submitted that they could not affect the safety of the jury's verdict any more than they could invalidate the correctness of her rulings at the close of the prosecution case, relying upon the reasoning of the Court R v Solomon and Triumph (1984.) 6 Cr App R(S) 120.

Conclusions on common grounds 1 and 2

45. Before expressing our conclusions, it is salutary to return to the Judge's directions of law as to what the prosecution had to prove against each appellant.
46. In the case of Mr, Kelly, the Judge, at pages 8H-9B of the transcript of her summing-up, correctly directed the jury as to what the prosecution had to prove to bring home a case of manslaughter based on gross neglect:

"... this is not a public enquiry; it is not a claim for damages in a civil court. It is a criminal trial. The Crown must therefore prove that the breach of duty in question was so bad, so gross, that it should be characterised by you as a crime – and not only as a crime, but the very serious crime of manslaughter."

47. In the case of Mr Frear, the starting point for the prosecution case against him was the absolute duty imposed on Trevella, subject to a defence of reasonable practicability, by sections 3(1) (a) and 33(1)(a) of the by 1974 Act, namely that:

"[i]t shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as it reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety."

48. The basis of the prosecution case against Mr Frear in respect of Trevella's breach of that "qualified" absolute duty, which it had acknowledged by its plea of guilty, is to be found in the familiar statutory formula, in this instance section 37 of the Act, which requires proof of some culpability on his part, namely consent, connivance or neglect. Section 37 provides:

"Where an offence … 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 … he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly."

49. On the facts of this case, the prosecution's only route to conviction of Mr Frear was to make the jury sure that Trevella's exposure of persons like Nathan to risk to health or safety in breach of the statutory provisions resulted, at least in part, from his neglect in failing, on his annual risk assessment visit to the site in May 2001, to lift and check the covers and the manhole rims on which they were seated and thereby to satisfy himself as to their safety or otherwise. And the only evidence it had bearing on his responsibilities and what he did on that visit to support its case came, as the Judge said in her sentencing remarks, from his account to the police interview.
50. The Judge accurately summarised for the jury the "qualified" absolute duty upon Trevella to ensure, "so far as it … [was] reasonably practicable", not to expose visitors to Newperran, including children like Nathan, to "risks to their health and safety". Then, at pages 11E-12A of the transcript of her summing-up, she put to the jury what the prosecution had to do to bring home its case against Mr Frear:

"As far as an individual is concerned, however, the Crown must prove more – not merely that the individual failed to prevent Nathan's accident, but that the company's offence was attributable in some way to their criminal neglect. It is not alleged here that Mr Frear or Mr Kelly 'consented to, or connived at' the offence, as the words of the statute would have it; the Crown rely upon their alleged criminal neglect; so … the prosecution must prove that the defendant in question owed a duty to young Nathan; that he neglected that duty by failing to take steps which he could and should have taken; that the taking of those steps expressly fell within his duties, or should have done; that he knew, or should have known, that the steps were necessary; and that the company's admitted offence was therefore in some way attributable to his criminal neglect."

51. In our view, Mr Moore's submission on the first ground to be preferred. As the Judge observed in her ruling on the point (see paragraph 24 above), there was "evidence … from a number of different quarters about the condition of the lids". As we have said, this was clearly a reference, not just to the physical condition of the covers considered on their own, but also to the adequacy of their seating on the rims of the manholes and to what the appellants knew or should have known about it. We agree with her that such evidence, looked at, at its highest, raised a case for both men to answer on those issues.
52. However, as to the second ground we find ourselves much of the same view as the Judge in her sentencing remarks, but not constrained to the same extent as she was by her duty of loyalty to the jury's verdicts. We are not satisfied as to the safety of the convictions for all the reasons advanced respectively by Mr Ford and Mr Dixey. All of those reasons, to which we have referred, went to the two most critical particulars of alleged neglect upon which the prosecution relied against Mr Kelly, and to which it gave similar prominence in its case against Mr Frear: 1) as to the adequacy of the seating of the cover in the manhole rim before and at the material time; and 2) what, if anything Mr Kelly and/or Mr Frear knew or should have known and done about it. The Judge focused on those vital pre-conditions of guilt in her two rulings at the close of the prosecution case (see paragraphs 24 to 26 above). But, as we have mentioned in paragraph 28 above, she did not do so in her directions at pages 9E to 12G of the summing-up as to the particulars of the offences and how to treat them, as distinct from her later rehearsal of the respective cases for the prosecution and the defence. If she had directed the jury in terms to concentrate on those essential aspects of the prosecution case – which she was later to identify in her sentencing remarks at page 5D-F of the transcript (see paragraph 32 above), it would or should have made a difference to their verdicts. But whether that is so or not, the paucity of the evidence as to the actual condition of the manhole and its cover immediately before Nathan's accident and as to any knowledge of it, actual or reasonably imputable to either appellant, leaves the Court distinctly uneasy about both convictions to the extent, as we have said, that we are not satisfied as to their safety.
53. Mr Frear's third ground of appeal – the Judge's direction as to inference from silence
54. Mr Frear's third ground of appeal goes to the Judge's direction, at page 17A to 18D of the transcript of her summing-up, under section 35 of the Criminal Justice and Public Order 1994 as to inferences from silence, which she gave in relation to the decisions of both appellants not to give evidence. Mr Dixey submitted that since there was no dispute as to the central facts, such a direction was unnecessary, the only issue being whether they amounted to the offence charged against him, relying upon R v McManus and Cross [2002] 1 Archbold News 2 CA. Although he acknowledged that such a complaint, even if well made, would not be sufficient on its own to render Mr Frear's conviction unsafe, we should note: 1) that the suggestion that there was no issue as to the central facts hardly squares with his and Mr Ford's principal complaint that the failure to preserve, properly examine and record evidence critical to the causation of Nathan's fatal accident meant that it was unfair for the prosecution to proceed for want of the wherewithal to determine the facts; and 2) the Judge, in giving the standard direction in each case, went out of her way to ask rhetorically, what more either of them could have said by way of addition to their full accounts in interview, as clear an indication as could be that they jury should not draw any adverse inference from their failure to give evidence. There is, as Mr Dixey acknowledged, very little, if anything in this complaint, that would influence the outcome of this appeal or, given our already expressed conclusion as to unsafety of the convictions, significantly support it.
55. For the reasons we have given, we are of the view that the appellants convictions are unsafe, and we, therefore, allow their appeals against their convictions and quash them.
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