Regina v P Ltd and another: [2007] EWCA Crim 1937

CA: Latham LJ, Pitchford and Royce JJ: 11 July 2007

The defendant company was responsible for management of an industrial area where a child died as a result of an accident involving a forklift truck carrying an unsecured load. The Health and Safety Executive alleged that the manner in which the unsecured load was carried contravened safe working practices. It prosecuted the company for offences of breach of duty under, inter alia, section 3 of the Health and Safety at Work etc Act 1974 to ensure the health and safety of others, and it prosecuted the second defendant, the company's managing director, under section 37(1) with being an officer of a body corporate to whom offences committed by that body corporate were attributable by his consent, connivance or neglect. At a preparatory hearing, the Health and Safety Executive contended that the managing director had ultimate responsibility for ensuring that the company complied with safe systems of work; and that he was aware of the unsafe practice of carrying unsecured loads, but through consent, connivance or neglect suffered the company to continue breaches of its duty under the 1974 Act. The judge made a preliminary ruling that to establish the offence under section 37(1) the prosecution had to prove subjective knowledge by the second defendant of the material facts giving rise to the breaches, and that he was neglectful of his duty to act in relation to those facts 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 that he could have taken.

The Health and Safety Executive appealed against the judge's ruling.

The Court of Appeal held:
The requirements of section 37(1) of the Health and Safety at Work etc Act 1974 did not refer to wilful neglect, and the question was not whether the defendant ought to have been aware of the material facts in the sense that he turned a blind eye. Where there was no actual knowledge of the state of facts, the question was whether the officer should none the less, by reason of the surrounding circumstances, have been put on inquiry, so as to require him to have taken steps to determine whether or not the appropriate safety procedures were in place. Accordingly, in order to establish a case to go before the jury, the prosecution did not have to prove that the defendant knew of the practice and its dangers, if there were circumstances which ought to have put him on inquiry as to that practice, and that was a question which could only be answered at the end of the prosecution case. The judge's ruling at the preliminary stage had been too prescriptive, and the appeal would be allowed to the extent of abstracting from the ruling the requirement that the defendant did know the material facts.

The appeal was allowed.

Appearances: Oba Nsugbe QC and Richard Matthews (Solicitor, Health and Safety Executive) for the Health and Safety Executive; Roger Eastman (Fisher Scoggins) for the defendant G; P Ltd did not appear and was not represented.