R (for and on behalf of the Health and Safety Executive) v Paul Jukes
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux |
| Judgment Date | 25 January 2018 |
| Neutral Citation | [2018] EWCA Crim 176 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No. 2016/04780/B2 |
| Date | 25 January 2018 |
[2018] EWCA Crim 176
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Flaux
Mrs Justice Nicola Davies DBE
and
HIS HONOUR JUDGE Bidder QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Case No. 2016/04780/B2
Mr J Ageros QC appeared on behalf of the Appellant
Mr A Long appeared on behalf of the Crown
JUDGMENT (Approved)
On 22 September 2016, following a trial in the Crown at Liverpool before His Honour Judge Trevor-Jones and a jury, the appellant was convicted of failing to discharge the duty to take reasonable care of the health and safety of employees, contrary to section 7 of the Health and Safety at Work etc Act 1974. On 15 December 2016 he was sentenced by the same judge to nine months' imprisonment and ordered to pay £7,000 prosecution costs.
Prior to the appellant's trial, his co-accused on the indictment, Jonathan Gaskell, Gaskells NW Limited and Michael Cunliffe had pleaded guilty to offences under the same statute. Accordingly, the trial had proceeded against the appellant alone. The appellant now appeals against conviction with the leave of the single judge.
The facts are as follows. Gaskells NW Limited (“the company”) was a waste and recycling company based in Bootle. The company employed about 60 people and was licensed to sort about 50 tonnes of waste a day. Gaskell was the managing director of the company. The appellant was the transport and operations manager. A baling machine was used by the company to compact paper and cardboard into bales. The door which provided access to the compaction chamber was fitted with an interlocked guard which stopped the machine if the door were opened, but the interlock had been bypassed. On 23 December 2010 an employee named Mr Galka was fatally injured in the baling machine. He entered the compaction chamber to clear a blockage and was crushed by the movement of the hydraulic ram.
The appellant was not interviewed by the Health and Safety Executive and the police until June 2012. He was represented by a solicitor from Russell, Jones and Walker, a firm which is now part of Slater and Gordon (his solicitors on this appeal). He provided a detailed, prepared statement in which he denied being responsible for health and safety at the premises. He stated, inter alia:
“Des Brown was the second in command as the senior operations manager and as health and safety manager. I was not the health and safety manager. I relied on supervisors to manage operations and to ensure that employees were competent to do their job. They reported to me and I reported to Des Brown.”
The prepared statement also stated that the appellant could not recall that the baler had broken down regularly and that he had no knowledge that the chamber door interlock switch had been bypassed. He stated that he had introduced a system of reporting faults, known as “Daily Defect Sheets”.
The prosecution case was that the appellant had taken over responsibility for health and safety and the maintenance of the baling machine after Des Brown was made redundant and left the company earlier in 2010. The appellant had been made aware that the interlock had been bypassed by Cunliffe, who was a fitter employed by the company. The prosecution contended that the appellant had failed to take reasonable care for the safety of employees.
The prosecution relied upon a number of matters to prove its case. First, it relied upon a signed statement of the appellant dated 9 February 2011 provided to the company's solicitors, DWF, in which he said:
“Following Des [Brown's] redundancy I took over formal responsibility for health and safety. I started a process of assessing the overall health and safety competency of the lads.
…
I'm responsible for daily housekeeping and health and safety on site, including the implementation of site safety and working practices.”
The prosecution contended that those statements undermined the appellant's assertion in the prepared statement given to the Health and Safety Executive and to the police, repeated in his Defence Statement, that he was not responsible for health and safety.
The prosecution also relied upon the CV he had prepared in April 2011, shortly after he left the company's employment in February 2011, in which he claimed that he had been responsible for health and safety at the company.
The prosecution relied upon the pleas of guilty of the co-accused, expert evidence as to the poor condition and maintenance of the baling machine, the failure to undertake risk assessments and provide operating procedures, and the lack of training, instruction and supervision of the staff.
The defence case was that the prosecution had overstated the appellant's responsibilities. He had not been aware that the guard had been bypassed or that there was any risk that an employee might access the chamber while the machine was live. He had taken reasonable care, bearing in mind the nature of his role and his limited training and experience.
In evidence the appellant said that his role had expanded into many areas involving health and safety, but that he had always reported to Des Brown, and, after he left, directly to Gaskell. He acknowledged that the baler had been in poor condition, but said that he had not been responsible for maintenance of it by October 2010.
In relation to the witness statement dated 9 February 2011, the appellant acknowledged that the signature appeared to be his, but claimed to have no recollection of signing it. If he had signed it, he would have done so only after pressure from Gaskell. He had been bullied by Gaskell and the atmosphere had become bad. Gaskell had wanted to mitigate his own position and had stated that if the appellant did not sign the statement, then the appellant's legal costs would not be covered. He did not agree the contents, particularly where it stated that he had been solely responsible for health and safety. In relation to the CV, he accepted that he had prepared it as a “selling document”, but maintained that he had never been the health and safety manager.
The appeal relates to two rulings by the judge. The first concerned the admissibility of the statement of 9 February 2011. The statement was provided at the request of the company's solicitors, DWF. The original trial was adjourned to enable the appellant to search the company's computer records contained on an NAS drive and a Dell tower. The contents were downloaded on to readable hard drives for each of the prosecution and the defence. The prosecution did not originally conduct any search, but shortly before the present trial, they conducted a limited search, which revealed for the first time an unsigned copy of the statement as an attachment to an email from Gaskell to his brother. The signed statement was then found sitting on Gaskell's electronic desktop computer.
On the first day of the present trial an issue arose as to the admissibility of the signed statement. On behalf of the appellant, Mr James Ageros QC submitted that it should not be admitted on the basis that it was a privileged document. The appellant had given the statement at a time when he was an employee of the company, and DWF were acting on behalf of the employees and the company. The court had previously ruled that the police could not look at or rely on privileged material which derived from the company' computer records. Mr Ageros eschewed any suggestion that the prosecution had acted improperly in producing the statement. He put his submission on the basis of the “lack of a joined-up approach” as to what should be looked at.
In ruling that the statement was admissible, the judge held that it was material evidence. It contradicted the appellant's accounts in his interview and defence statement that he had not been responsible for health and safety. At the time that the statement was provided to DWF, there were no investigations or proceedings in existence. Proceedings may have been contemplated, but the fact that a statement was provided did not make it privileged. It may have been used in proceedings; it was not a communication between the appellant and his solicitors; and any privilege would not have been the appellant's. Furthermore, there was no allegation of bad faith by the prosecution. It was part of a vast volume of material obtained in the course of the investigation. Even if privileged, once in the hands of the other party it was admissible, subject to the power and discretion to exclude it under section 78 of the Police and Criminal Evidence Act 1984. In assessing fairness, the judge had to consider fairness to both the prosecution and the defence. In the circumstances, he did not consider it unfair to adduce the statement.
The second ruling to which the appeal relates concerns the subsequent conviction of Gaskell in October 2013 of an offence of conspiracy to pervert the course of justice, where Gaskell was one of 28 people who had prevailed upon an employee at the local magistrates' court to alter details on driving licences to avoid totting up or disqualification. The appellant sought to adduce that evidence as bad character evidence. Mr Ageros put this forward in the alternative under section 101(1)(e) of the Criminal Justice Act 2003, that it had substantial probative value in relation to an important matter in issue between the appellant and a co-defendant (Gaskell); or, if Gaskell was not to be treated as a co-defendant but was a non-defendant, Mr Ageros put it alternatively under section...
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