R (Butler) v HM Coroner for the Black Country [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 2010 |
| Date | 21 January 2010 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/6220/2009
Beatson J
J Randall QC and J Quirke (instructed by Waldrons Solicitors) for the claimant, W Hoskins (instructed by Sandwell MBC) for the defendant.
Whether the scope of inquiry in a non-Art 2 inquest was limited by r36 Coroners Rules 1984; whether the coroner had adopted a correct approach to the elements of gross negligence manslaughter; whether the coroner's approach to disclosure and the evidence gave rise to an appearance of unconscious bias.
The claimants were directors of a company one of whose employees had been killed when a loader driven by another employee had backed over him. The Crown Prosecution Service had investigated the matter and decided no charges would be brought. The inquest was then to be resumed. A Health and Safety Executive investigation had also been conducted and the coroner intended to adduce evidence from the HSE inspector which covered the company's previous dealings with the HSE, alleged defects in the loader, the adequacy of company's risk assessment and health and safety policies and whether there had been breaches of the Health and Safety Act and Regulations. The coroner considered that on that evidence a verdict of unlawful killing might properly be left to the jury. He declined to disclose to the claimants the majority of the witness statements, including the statements of all direct witnesses to the incident, on the ground that there was no obligation of disclosure under the Coroners Rules 1984 and because of an agreement by the Coroners Society to uphold a general "embargo" by the HSE.
When the coroner declined to adjourn the inquest the claimants brought judicial review proceedings challenging the refusal of disclosure and also the decision as to the scope of the evidence to be called. It was argued that a verdict of unlawful killing could not properly be left to the jury as the individual acts of employees could not be aggregated into a composite act of gross negligence; and that the scope of the inquest should not include evidence of alleged breach of Health and Safety regulations five years before the death. The claimants also submitted that there was apparent bias on the coroner's part in the manner in which he had dealt with these pre-inquest issues and his subsequent dealings with the HSE. The coroner submitted that the scope of the inquest was
not limited by r36 of the 1984 Rules and, even though it was an inquest that did not need to comply with the requirements of Art 2 ECHR as interpreted in R (Middleton) v West Somerset CoronerELR[2004] 2 AC 182, [2004] Inquest Law Reports 17, and so was governed by R v HM Coroner for North Humberside &Scunthorpe ex p JamiesonELR[1995] QB 1, it could go beyond what was needed for a narrow verdict of "by what means" the deceased came by his death and could include the causes of the incident including questions of system, training, methods of work and safety equipment if causally relevant.
1. The claimants, Stephen and Ian Butler are brothers and directors of Need a Skip Ltd ("the company"). On 11 September 2006 one of the company's employees, Wayne Meylan, was killed when a Komatsu loader, driven by Roy Reid, another employee, backed over him at the company's West Bromwich premises while he was crouched in the yard connecting electrical wire to a pump to pump water out of a manhole. The claimants challenge decisions made by the defendant, Mr Robin Balmain, HM Coroner for the Black Country ("the coroner"), about the inquest into the death. It is common ground that the inquest is a "traditional" or "Jamieson" inquest and not an "Art 2" or "Middleton" inquest. A "traditional" or "Jamieson" inquest considers "by what means" the deceased came by his death. In an "Art 2" or "Middleton" inquest the issue is the accountability of state agents for a death occurring within their responsibility and a wider inquiry into the broad circumstances of the death may be required to satisfy Art 2 of the European Convention of Human Rights.
2. The inquest was opened on 15 September 2006 and immediately adjourned pursuant to s16 of the Coroners Act 1988 ("the 1988 Act") because of investigations into the death by the police and the Health and Safety Executive ("the HSE"). In February 2009 the Crown Prosecution Service notified the coroner that it had decided not to charge anybody with manslaughter and, after considering the results of the police and HSE investigations, he began to make arrangements for the renewed hearing which was to start on 22 June.
3. The claimants challenge the coroner's decisions about the evidence that was to be disclosed to the claimants and the scope of the evidence to be called and what can properly be called in a Jamieson inquest, and the coroner's rejection of their application for an adjournment. They also submit that there is apparent bias on his part. Underlying the rival submissions by the parties is the question of whether the scope of inquiry in a Jamieson inquest is necessarily narrower than in a Middleton inquest and the circumstances in which matters such as system and methods of work and training may be explored.
4. The coroner decided that the evidence of two police officers who interviewed the claimants and the driver of the loader under caution in respect of a possible offence of manslaughter and the evidence of Mr Chater of Messrs Atkins, who prepared a report for the HSE, and of Mr Hitchcott, a HSE inspector, should be adduced. This evidence was all largely concerned with the company's previous dealings with the HSE, defects in the loader, and whether there had been breaches of the Health and Safety Act and Regulations.
5. Mr Hitchcott's report deals with visits made to the West Bromwich premises in September 2005 about other equipment, when he observed an untrained employee driving the Komatsu loader, and a visit
after the incident in which Mr Meylan died when he took possession of documents including risk assessments and the company's safety policies.
6. Mr Chater's report concerns the company's risk control measures for workplace transport activities at its premises. It is a review of "the practical measures and good practice which should have been in place to create a safe site before the accident". It is based on a site visit, a report by the HSE in 2006 on the loader's mechanical condition and safety devices fitted to it, and the police witness statements and other documentation: paras 8.1 and 8.2.
7. Mr Chater stated (para 8.3) that the company "had a health and safety policy in place which, although not ideal, had it been implemented would have reduced the likelihood of the accident taking place". He also stated that "suitable and sufficient risk assessments had not been undertaken". He considered (para 8.7) that "the lack of induction training, the lack of risk assessments and the failure to promulgate the HS policy all contributed to a lack of safety culture throughout the company". He stated (para 8.8) that the directors of the company "did not fulfil their responsibility under the company's health and safety policy", and "did not communicate that policy to their employees in general or to their supervisory staff in particular" or ensure that it was communicated. He also stated (para 8.9) that "although Need-a-Skip's practices fell short of health and safety good practice, the company is certainly not unique in the industry, but there are examples of good practice to be found". He considered (para 8.10) the accident "should have been foreseeable and with appropriate management structures could have been avoided".
8. The coroner wishes to adduce this evidence because he considers a verdict of unlawful killing might properly be left to the jury in this case. In determining what evidence should be adduced, he also took into account the possibilities of:
(a) a narrative verdict recording the factual causes of the incident, and
(b) a report by him to the relevant authorities under r43 of the Coroners Rules 1984 (1984) SI no 552 ("the 1984 Rules").
9. Mr Randall QC, on behalf of the claimants, challenged the coroner's decisions on a number of grounds. The first was that in the circumstances of this case no verdict of unlawful killing could properly be left to the jury. He argued that the coroner fell into error in wishing to consider evidence, in particular that contained in the reports of the experts, about alleged breaches of Health and Safety Regulations in the five years prior to the incident. For unlawful killing on the basis of gross negligence manslaughter to be proved against the company or an individual director it had to be shown that an identified individual who was a director had by an act or omission of criminal negligence caused the death of the deceased. Moreover, the individual acts of employees cannot be aggregated into a composite act of gross negligence. Mr Randall accepted that it might have been possible for the coroner to reach the conclusions that he did, but argued that he erred in failing to direct himself as to these requirements. Initially he had submitted that, on the evidence before him, they could not be satisfied.
10. Mr Randall's second submission is that the coroner erred in justifying the scope of the inquiry on the ground that it would enable the jury to consider returning a narrative verdict or because of the possible need to refer the matter to the relevant authorities under r43 of the 1984 Rules. He also submitted that the coroner wrongfully refused to disclose evidence and then to adjourn the inquest to enable the claimants and their legal representatives to deal with statements and evidence disclosed shortly before the hearing of the resumed inquest was to commence.
11. The complaint of non-disclosure relates to the initial...
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