England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Wednesday, 22nd March 2006

1. THE VICE PRESIDENT: On 21st April 2005, following a 10 week trial at Preston Crown Court, before Poole J, the appellant was convicted, by the jury's unanimous verdict on count 9, of failing to discharge a duty under section 7 of the Health and Safety at Work Act 1974. The jury failed to agree in relation to counts 1 to 7, which alleged manslaughter. No sentencing has taken place because it is presently contemplated that, in any event, the Crown will seek a retrial of the appellant in relation to manslaughter.
2. The co-accused was the Barrow Borough Council. They, on the direction of the judge, were acquitted on the seven counts of manslaughter which were laid against them as well as against the appellant. The council pleaded guilty to count 8, which lay against them, which was the same allegation as against this appellant, namely, a failure to discharge a duty under, in their case, section 3 of the Health and Safety at Work Act 1974. The appellant appeals against conviction by leave of the Full Court, differently constituted, following refusal of leave by the Single Judge.
3. In summary, the material events were these. In July/ August 2002 there was an outbreak of Legionnaires disease in the Barrow-in-Furness area. The source of the bacteria which caused it was found to be the cooling towers for the air conditioning and heating system of a building in Barrow-in-Furness which included a theatre, which was operated by the council and was known as Forum 28. The dangers posed by the Legionella bacterium and the conditions giving rise to it were, at the time, well recognised and covered by a Code of Practice issued by the Health and Safety Executive, initially in 1995, and then superseded by an approved Code of Practice L8, in relation to the compliance of building owners with their duties under the Health and Safety at Work Act.
4. The appellant is a qualified architect and she was employed by the council as head of Design Services Group which, among other things, advised and acted for other departments in relation to the maintenance of council buildings. Those duties included negotiating and entering into maintenance contracts for the air conditioning and ancillary equipment in Forum 28. The appellant was nominally subject to supervision from the Director of Development but in practice ran her department without supervision.
5. Until the end of 2000, the air conditioning maintenance contract at Forum 28 was undertaken by a company called Halls through its subsidiary, Streamline. There were concerns with regard to Hall's efficiency and so a quotation was sought from another firm, Interserve. In April 2001 Halls were given notice of termination of their contract. There were a number of meetings, in particular in July 2001, between the appellant and others, in relation to what Interserve should be asked to quote for. The contract negotiated with Mr Maddock, the commercial manager of Interserve, was to start on 1st September 2001. It was the case for the prosecution that that contract did not include, as it should have done, provisions for appropriate testing and sampling of the water, in order that the system could run safely.
6. In January 2002, a Mr MacDonald, who was Interserve's engineer, according to his evidence reported that the cooling towers and plant room needed replacement and that the chemical barrels supplying the automatic dosing system were almost empty, so no water treatment was taking place. From the end of July 2002, the staff at Barrow General Hospital noticed an unusually high number of patients presenting with symptoms which on 1st August were diagnosed as Legionnaires disease. The cooling towers at Forum 28 were shut down on that day and the following day the particular strain of Legionella was identified: the cooling towers at Forum 28 were the only source of that bacterium in the area. It was in consequence that the seven counts of manslaughter were framed relating to seven victims who had, sadly, died having contracted this condition.
7. The appellant was arrested on 6th September 2002. In her first interview she denied having responsibility for the content of the maintenance contract at Forum 28 and she denied responsibility for what had occurred. In a later interview, she denied it was the responsibility of her group to arrange and implement maintenance contracts at public buildings. She suggested that the technical manager, Mr Borthwick, employed at Forum 28 had failed in his duties and that she relied on Interserve to ensure that everything was done properly.
8. In interview, on 10th December, she accepted it was her department's responsibility to arrange for the contract for Forum 28 and that she had assumed an important role, but she claimed that she had no real understanding of the aspects of water treatment which were relevant. She agreed that she had arranged for the provision of water treatment to be removed from the contract. She was critical of senior management for failing to train her properly, and she denied personal responsibility for the outbreak. The Crown's case against her was, in part, that she had, during the course of these interviews, shifted her ground and told lies.
9. So far as count 9 is concerned, the allegation was that, between March 2001 and August 2002, the appellant, as an employee of the council, had failed to take reasonable care for the health and safety of herself and others who might be affected by her acts or omissions at work, thereby exposing such persons to the risk of contracting Legionnaires disease, from the discharge of Legionella bacteria from the cooling towers of Forum 28.
10. The Crown, at the behest of the defence, served ten particulars to support the allegation made in the statement of the offence in count 9. It is unnecessary to rehearse those particulars. They are not in dispute. They include two alleged acts and eight alleged omissions.
11. At the close of the prosecution case, a submission was made on behalf of the defence that there was no case to answer in relation to count 9. The judge rejected that submission. This gives rise to the first ground of appeal, both in its original form and in a proffered amended form, by way of additional grounds postulated a few days ago in Mr Hockman's supplementary skeleton. To that, in a moment, we shall return.
12. The jury was directed, in due course, that they had to be sure that one or more of the particulars was made out and be sure that, by reason of it or them, the defendant failed in her duty to take the required reasonable care for the health and safety of those who might be affected. They were also directed that failures by others did not exempt the defendant from liability and it was for the jury to determine what constituted reasonable care. It was for them to decide, also, as a question of fact, what was and was not included in the terms of the agreement with Interserve. The alleged inadequacies of the summing-up give rise to other grounds of appeal to which we shall shortly come.
13. It is unnecessary for the purposes of this appeal and would be undesirable, in view of the retrial of the appellant which is already contemplated, for us to rehearse the evidence which was heard by the jury and comprehensively reviewed by the judge in his summing-up.
14. The way in which Mr Hockman QC, who did not appear at the trial, presented the case for the appellant to this Court was under three headings. The first, in relation to the contractual aspect of the matter, was in support of the first ground of appeal on which the Full Court gave leave. The contention is that the evidence was such that the judge should not have permitted the case to go to the jury and should have acceded to the submission of "no case" made at the close of the prosecution evidence. It is submitted that the prosecution case on culpability was irremediably undermined by the evidence of the prosecution witnesses, Mr Maddock and Mr Borthwick, to whom we have referred.
15. By the more recently proffered grounds of appeal on this aspect of the matter, Mr Hockman seeks to contend that the summing-up was inadequate in relation to the contractual situation which the jury had to assess and such was the deficiency in the prosecution case, with regard to the contractual position, that the judge ought not to have allowed the case to go to the jury. Mr Hockman, frankly accepts that, in the course of the trial below, Mr Maddock was not questioned along the lines that the only contract was the written contract and therefore such oral conversations as had taken place with the defendant were a non-contractual irrelevance. Mr Hockman further accepts that the contractual points which he now seeks to take were not canvassed before the judge at the time a submission of no case was made.
16. In our judgment, it is not appropriate, in the circumstances of this case, when the contractual position was not evidentially or in submission explored at the trial below, to permit the grounds of appeal to be amplified by reference to that matter at this stage. Focussing, in the light of that observation, on the question of whether or not the material before the jury gave rise to a case to answer, it is, in our judgment, plain that there was a case to answer, in the light of matters canvassed before the jury. It was for the jury to decide whether the water treatment, including the monitoring of the impact of the treatment on bacterial levels, was or was not within the contract between the council and Interserve, as negotiated and not merely facilitated by the appellant. It was for the jury to decide whether, in the light of their conclusions as to that aspect of the matter, there was a consequential breach of the duty of care owed by the appellant. Without seeking to be in any way exhaustive in relation to the prosecution evidence which, as it seems to us, called for an answer, we identify a number of its features. There was exhibit 28, referred to in the summing-up at page 179B, namely the appellant's own note, made after the outbreak had occurred: This indicates, on its face, that dosing/monitoring had been excluded from the Interserve contract. There is exhibit 16, referred to in the summing-up as at page 39, namely the minutes of a meeting on 20th July, at which the appellant was present, at which it appears that it was agreed that checking/dosing should be omitted, as, at that stage, it was contemplated it would be carried out in-house or locally. There was the admission made by the appellant in interview that the decision on 20th July, to withdraw water sampling and dosing from the contract: that is referred to in the summing-up at page 256C. There was also the evidence of Mr MacDonald, to which we have very briefly referred and the evidence from Mr Borthwick. There was also the aspect of the matter that, until after the first interview, the appellant was accepting that water treatment had not been included in the contract and that she was, she accepted at that stage, negotiating the contract.
17. Those matters, which we merely highlight among others, were such as to constitute a case for the jury's consideration. As to the submission that the evidence of Mr Borthwick and Mr Maddock undermined the prosecution case, that, as it seems to us, was entirely a matter for the jury, in the light of what conclusions they reached as to what aspects of that evidence they could accept and as to what impact the evidence they accepted had upon the prosecution case. In that regard, there is a subsidiary complaint made in the grounds with regard to the direction given that the evidence of Mr Maddock required confirmation before it could be relied on. It is apparent from the terms of the direction that it was given by reference to the prosecution being able to rely on the evidence of Maddock. We do not accept Mr Hockman's submission that, that direction having been given, it was incumbent on the judge to give a further direction that the jury could, even absent confirmation, rely upon the evidence of Mr Maddock so far as the defence were concerned. We also reject the allegation that the summing-up was in general terms unbalanced and unfair. In our judgment, it was, in general terms, fair and balanced and it contained many characteristically trenchant observations by the judge, in relation to the shortcomings of others apart from the appellant. As it seems to us, therefore, there is no substance in the first part of Mr Hockman's submissions, either in their written or in their oral form as presented to us.
18. The third heading of Mr Hockman relates to what is, for the most part, contained in ground 5 of the grounds of appeal. It is directed to a criticism of the way in which the judge directed the jury with regard to the duty of care on the appellant and as to possible breach of that duty. The relevant passage is set out in the summing-up at page 18C to H. It is unnecessary to rehearse that passage. Mr Hockman's submission is that, over and above what the learned judge said by way of direction to the jury at that stage, he ought also to have directed them that the appellant was only to be fixed with that level of knowledge of risk that a reasonably careful and conscientious manager in her position at that time, with access to the knowledge available to her at the time ought, in the view of the jury, to have had. He should have warned the jury not to apply an unrealistically high standard of perfection or to use hindsight which would not have been available to the appellant at the time. There is no doubt that some judges, in summing-up a case of this kind, might have given a direction which incorporated some aspects of that. The crucial question, however, is whether, the way in which the judge did direct the jury in the passage we have identified was such as might render the jury's verdict unsafe. In our view, that criticism cannot be sustained. He correctly directed the jury that they were to set the standard of what was reasonable care. He directed them that, in determining that question, they should consider all the circumstances; and he identified, specifically, a number of matters to which they should have regard. He also referred to the significance, potentially, of the acts and omissions of others including the council itself and Mr Maddock. In our judgment, there is no reason for regarding the direction which the judge gave in that passage as impairing the safety of the jury's verdict.
19. There remains however the "options" matter, as Mr Hockman put the second part of his submission. The relevant parts of the summing-up, which give rise to the question of whether this Court's decision in R v Brown 79 Cr App R 115 was adequately reflected, start at page 17. There, having rehearsed the ten particulars, on which the prosecution relied, the judge said:

"...all that does is to state, in precise form, the case the prosecution has been presenting and the defence has been meeting ... You do not have to find all elements of the particulars proved against Gillian Beckingham, but you must be sure that one or more of those particulars is made out, and be sure by reason of it or them she failed in her duty to take the required, reasonable care, that is to say care for the health and safety of those who might be affected by her acts or omissions..."

At 17G, the judge went on:

"Before you can convict the defendant of this count 9, members of the jury, you must be sure of these things. [He identified four matters, the third of which is pertinent]... by way of one or more of the particulars that have been cited in evidence, and of which I have just reminded you, that while acting within the scope of her duty she failed to take that reasonable care."

20. The learned judge, during the course of his summing-up, handed to the jury certain written directions on this aspect of the matter, which are, so far as is presently relevant, in these terms:

"In the context of count 9, you should consider the ten particulars of breach of duty by acts or omission alleged by the prosecution in their list of particulars under count 9, together with the evidence of the defendant in response to those particulars. In respect of the particulars of breach, ask yourself in relation to each (a) was this within the scope of duty (b) was she in breach of her duty in respect of that alleged failing. If she was in breach in respect of any one of those alleged failings she is guilty of the offence, under count 9."

Mr Hockman submits that those directions ought to have included a further specific direction, in accordance with Brown, that the jury must all be agreed that at least one of the particulars was proved; they must also be agreed which one was proved; and that it was not enough if only some of them were sure on one allegation and others were sure on another, if there was no one allegation on which they were all agreed. Absent any such direction, Mr Hockman submits there were at least ten alternative routes to the verdict of guilty which the jury returned. There may have been no unanimity in relation to one of the ten particulars on which the Crown relied. It may well have been common ground before us that not all the ten particulars were of equal importance and significance. But that was the way in which the case was presented to this jury. The way in which Mr Webster QC, for the Crown, puts the matter is this: he accepts that there is nowhere to be found in the summing-up a single passage in accordance with Brown. But he took us to five separate passages in the summing-up, at page 17G, 20C, 129A, 275E and 277, where, in each case, the judge directed the jury that they must be sure, in relation to one of the particulars which the judge was dealing with in that passage. Mr Webster submits that any jury so directed, applying its common sense, must have concluded that they must be sure in relation to one of the particulars, at least, before they could convict. In the alternative, Mr Webster draws attention to the strength of the prosecution evidence in support of his submission, that, even if there was a non- direction by the judge, the verdict should be regarded as safe. We are unable to accept Mr Webster's submissions. As it seems to us, having regard to the way in which this case was presented by the prosecution, it was incumbent on the judge specifically to direct the jury that they must unanimously be sure that one or more of the particulars relied on as supporting the offence was made out and that this gave rise to a breach of duty under section 7.

21. In the absence of such a direction, we cannot be sure that the jury's verdict on count 9 would necessarily have been the same. We say this because it is not possible to say, in the light of the directions which the judge gave and did not give, by which route the jury reached their verdict or whether they were unanimous on any of the ten particulars on which the count depended.
22. In those circumstances, this appeal must be allowed and the conviction on count 9 will be quashed.
23. THE VICE PRESIDENT: Mr Webster, what do you say about a retrial in relation to count 9?
24. MR WEBSTER: The Crown does intend to pursue the charges of manslaughter. The matter is due to be heard on 7th April, in this building, for directions. We would seek also to retry the defendant in relation to this count.
25. THE VICE PRESIDENT: Mr Hockman, can you resist a retrial on count 9?
26. MR HOCKMAN: No, my Lord.
27. THE VICE PRESIDENT: Very well, we shall give directions that a new indictment be preferred which will include count 9. It will be preferred within 28 days and a plea will be taken to it within 2 months from today. We shall grant, so far as it is necessary to do so, a representation order for leading and junior counsel and solicitors for the retrial in relation to count 9.