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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> P, R. v [2007] EWCA Crim 1937 (11 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1937.html Cite as: [2007] EWCA Crim 1937, [2008] ICR 96 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
(Vice President of the Court of Appeal Criminal Division)
MR JUSTICE PITCHFORD
MR JUSTICE ROYCE
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MR O NSUGBE QC AND MR R MATTHEWS appeared on behalf of the Crown
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"Therefore I rule that where 'neglect' is relied on the following elements have to be proved:
1. That P Limited committed a breach of sections 2 and/or 3 of HSWA 1974.
2. The defendant Mr G had a duty to inform himself of the facts giving rise to the breach or breaches, and did know of the material facts.
3. The defendant Mr G had a duty to act in relation to those facts.
4. The defendant Mr G was neglectful of his duty in the sense that he either knew or ought to have known but shut his eyes to the fact that there were reasonable practical steps he could have taken but which he did not.
5. That his neglect of duty caused or contributed to the company breaching its duty under section 2 or 3."
"Upon the question of the interpretation of the word 'neglect' we do not detect in the competing arguments any material difference of approach. On both sides it is accepted, correctly, that the word 'neglect' in its natural meaning pre-supposes the existence of some obligation or duty on the part of the person charged with neglect. Where that word appears in section 37(1) it is associated with certain specified officers of a body corporate or with persons 'purporting to act in any such capacity'. It is any neglect on their part to which the commission of an offence within a specified category by a body corporate is attributable which attracts the penal sanction. As we read the subsection and also section 37(2) which deals with the case of a body corporate, the affairs of which are managed by its members, it seems clear that the section as a whole is concerned primarily to provide a penal sanction against those persons charged with functions of management who can be shown to have been responsible for the commission of a relevant offence by an artificial persona, a body corporate. Accordingly, in considering in a given case whether there has been neglect within the meaning of section 37(1) on the part of a particular director or other particular officer charged, the search must be to discover whether the accused has failed to take some steps to prevent the commission of an offence by the corporation to which he belongs if the taking of those steps either expressly falls or should be held to fall within the scope of the functions of the office which he holds. In all cases accordingly the functions of the office of a person charged with a contravention of section 37(1) will be a highly relevant consideration for any judge or jury and the question whether there was on his part, as the holder of his particular office, a failure to take a step which he could and should have taken will fall to be answered in the light of the whole circumstances of the case including his state of knowledge of the need for action, or the existence of a state of fact requiring action to be taken of which he ought to have been aware."
"In my judgment 'ought to have been aware' in this passage must have been construed in the sense of turning a blind eye in circumstances where the defendant had suspicion or belief as to the material facts but, because he feared the answer might be unpalatable, he did not want to know more. This is the sense in which it is described in Manifest Shipping v Uni-Polaris Insurance Co Limited [2003] 1 AC 46. It is a subjective test and not equivalent to inadvertence, laziness or even gross negligence. I believe this is the correct test to adopt in these counts at this stage and for the purpose of these applications."