R v James Godfrey Joseph Porter
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES |
| Judgment Date | 19 May 2008 |
| Neutral Citation | [2008] EWCA Crim 1271 |
| Date | 19 May 2008 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2007/04618/B3 |
[2008] EWCA Crim 1271
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice Moses
Mr Justice Beatson and
Sir Richard Curtis
No. 2007/04618/B3
Mr P Harrington QC and Mr G Forlin appeared on behalf of the Appellant
Mr T Horlock QC and Mr N D Jones appeared on behalf of the Crown
Monday 19 May 2008
This case concerns a truly terrible tragedy to the three and three-quarter year old son, Kian, of Mr and Mrs Williams. They have sat with patience and dignity throughout these proceedings. No one can put into words the extent of their tragedy or fully express adequate sympathy for their loss. Certainly to have sat through the trial and then this appeal can have done nothing to alleviate, and may well have aggravated, their sorrow.
Kian attended Hillgrove School, Bangor, in North Wales. This is a private school for children from the age of 3–16. The appellant, Mr Porter, was the headmaster. He had taken over the school in 1975 and had, so the evidence showed, run the school far more successfully than had been achieved before. It is not a purpose-built building. It was on a “rugged school site”. There were two playgrounds which were on different levels. The lower playground was set in a disused quarry. Access from one playground to another was primarily by a set of brick steps. Each step had a width of 109cm, a depth of 43cm and a rising of 18.5cm. They led onto a hard concrete surface.
During a morning break on 7 July 2004 a number of children were in both playgrounds. There were ten from the kindergarten (which included Kian), 31 from the infants and 18 from the juniors on the playground below. There was but one teacher on duty on the upper playground. At the time of the accident to which we shall come, she was, unfortunately, absent. She said that her absence was for a very short period of about 30 seconds, but there was no precise timing. It was at that moment, unwatched or unsupervised by any teacher, that Kian went down the steps. He successfully managed to descend to the fourth step from the bottom. At that point he jumped, but lost his footing as he descended a distance of 22.5 inches. He landed face-down on the bottom step. Although initially he was conscious, he suffered a head injury. Fortunately he was seen by a young assistant who was carrying out work experience.
Kian was taken to the local hospital and from there to Alder Hey Hospital where, tragically, he became fatally ill due to MRSA. It is apparent from the evidence that the death would not otherwise have occurred from the head injury he suffered in the playground, from which he might reasonably have been expected to recover fully.
There is no dispute but that the provisions of the Health and Safety at Work Act 1974 (“the 1974 Act”) imposed a duty on the appellant headmaster in respect of the children playing in the playground. Section 3(1) imposes a duty on a headmaster in respect of children as being persons other than employees. It reads:
“(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure so far as is reasonably practicable that persons not in his employment, who may be affected thereby, are not thereby exposed to risks to their health or safety.”
The Act creates offences for breach of that duty and further provides that the burden is upon a defendant to establish the limits of what is practicable. Where a provision imposes a duty to ensure safety so far as reasonably practicable, it shall be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty (section 40).
Shortly after this terrible accident, the Health and Safety Executive served an Improvement Notice which required the school to provide a gate. The school was warned that a failure to do so would lead to it being closed. Accordingly a gate was provided, although there was evidence that the existence of a gate and fence decreased the opportunity for supervising teachers to see into the playground below.
Unfortunately the appellant was not interviewed for a period of ten months. There then took place a long, discursive interview during which no clear allegation was ever made against him. There was, it is true, a discussion as to the levels of supervision which he provided during playtime. It was put to him that he would not be content to permit infants to explore anywhere without supervision. The appellant pointed out that the staff were experienced and aware of what was necessary. He then emphasised, as he was later to reiterate, that it was important to instil in the children a sense of responsibility. He also pointed out that the nature of the playground was such that there were steps everywhere.
There was no specific allegation that a failure to prevent unsupervised access to the steps by a child of three years and nine months amounted to a breach of the duty imposed upon the appellant by section 3 of the 1974 Act. Indeed it may be that the Executive had not yet appreciated that that was to be their case since it is difficult to see why otherwise, following the interview, there was a further delay of fifteen months before a decision was made to bring a case against the appellant. That was at a time just over two years after the accident. He was not tried until four years after it.
On 31 July 2007, at Mold Crown Court, before His Honour Judge Rodgers QC and a jury, the applicant was tried and convicted by a majority of 11:1. It was only in the preparation of the case that the allegation emerged, first of all, in an indictment which was abandoned. That was not surprising since the risk identified in the particulars of offence in that indictment was said to be a “risk of death and personal injury from falling during break time”. Death, we reiterate, had nothing to do with this appellant.
The particulars of offence which the appellant faced before the jury alleged that the risk to safety was “falling on a flight of steps”. Again that was not accurate. It is no surprise, therefore, that in their opening the prosecution alleged:
“The flight of steps to which children aged 3 and 4 years could gain unsupervised access during break times fell within the ambit of the defendant's conduct of his undertaking.”
It was also alleged that the appellant exposed such a child to a risk by reason of falling from the flight of steps. The prosecution alleged that they could support their case by reason of the appellant designating the steps as being out of bounds. In fact, the evidence subsequently showed that that was in order to segregate one group of children from another. The younger children (amongst whom Kian could be numbered) wished to be nearer a teacher and the toilets.
The prosecution called no expert, but they called witnesses who worked and taught at two other schools to establish that they operated a level of supervision higher than that operated by Hillgrove School, a pupil ratio of 2:26. This was mirrored in a guideline on which the prosecution attached importance, namely that the Department of Health in 1991 had recommended that in respect of nursery classes in schools maintained by local education authorities, the minimum ratio should be 2:26. No one suggested that that necessarily applied to playgrounds or could point to any published guideline that that was the level of supervision required within a playground. This high point of the prosecution's case was somewhat diminished by the evidence elucidated in cross-examination, that the safety record of those schools was far lower than that achieved by Hillgrove School. In the 29 years before this accident, during which the appellant and his wife ran the school, there had never been any complaint about standards of health or safety. There had never been a single visit by the Health and Safety Executive. Nor had there ever been an accident on the steps in question, despite the fact that...
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