England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOURNEMOUTH CROWN COURT
HHJ HARROW
T20080365

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/10/2009

Lord Justice Dyson:

1. This is the judgment of the court.
2. The Respondent (EGS) and two co-defendants, (PEL and FGL) face trial in the Bournemouth Crown Court on an indictment containing 5 counts alleging breaches of Health and Safety legislation. Counts 1, 2 and 3 allege respectively against each defendant a failure to discharge a duty in the conduct of an undertaking to ensure the safety of persons not in its employment, contrary to section 3(1) and 33(1) of the Health and Safety at Work Act 1974 ("the 1974 Act"). Counts 4 and 5 allege against EGS alone supply of machinery which did not comply with the requirements of Regulation 12 of the Supply of Machinery (Safety) Regulations 1992 ("SMSR") contrary to Regulations 11 and 29 of the SMSR and section 2(2) of the European Communities Act 1972.
3. This is an application for leave to appeal by the prosecution against the ruling by the trial judge (HH Judge Harrow) allowing a submission by EGS of no case to answer in respect of counts 3 and 4 at the close of the prosecution case. On 24 September, we gave leave to appeal and made an order under section 61(4)(a) of the Criminal Justice Act 2003 that the proceedings in relation to those counts may be resumed. We now give the reasons for our decision.
4. The facts which gave rise to these proceedings are truly tragic. On 13 April 2006, JK (aged 9) went with his mother and sister to visit his grandparents at their apartment in a newly built block of flats. The entrance gates to the driveway leading to the block measured 1.96m x 1.96m. They were heavy and made of steel in the style of wrought iron and were fixed to brick pillars. They were electronically operated. The gates could be opened from the street by means the use of remote control fobs or by the use of the two-way intercom system which was sited on the outside of the right brick pillar.
5. There was also a pedestrian egress button on the inside face of the same pillar. This was intended to be operated by pedestrians on leaving the premises. The gap between the gate heel and the right hand pillar was 160 mm when the gates were closed, but this gap reduced to about 110 mm when the gates opened. As the facts of this case cruelly demonstrate, it was possible for a small person to lean through the gap of 160 mm and reach the egress button on the back of the pillar and open the gates by pressing the button. The crushing force exerted when the gates opened was great. JK leant through the gap and pressed the egress button. He was still leaning through the gap as the gates opened and was unable to extricate himself through the narrowing gap. He was crushed between the right hand gate and the pillar and suffered fatal injuries.
6. PEL was the main contractor for the development. FGL was the contractor which fabricated and installed the gates. EGS, a small company whose sole director is NP, undertook the installation of the components necessary to enable the gates to operate electronically.

Count 3

7. Count 3 is in these terms:

"STATEMENT OF OFFENCE

Failing to discharge a duty in the conduct of an undertaking, to ensure the safety of persons not in their employment, contrary to section 3(1) and section 33(1)(a) of the Health and Safety at Work etc Act 1974.

PARTICULARS OF OFFENCE

ELECTRIC GATE SERVICES LIMITED between the 1^st day of August 2004 and the 14^th day of April 2006, as an employer, failed to conduct its undertaking, namely the construction and installation of a pair of electrically powered entrance gates, in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who might be affected thereby, including JK, were not exposed to risks to their health and safety."

8. Section 3 of the 1974 Act provides:

"(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 exposed to risks to their health or safety."

Section 40 provides:

"In any proceedings for an offence under any relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something .....so far as is reasonably practicable....., it shall be for the accused to prove (as the case may be) that it was not....reasonably practicable to do more than was done to satisfy the duty or requirement..."

9. At para 12 of his witness statement, NP said that he agreed the location of the pedestrian egress button with H, a director of PEL. At para 31, he said:

"I thought the pillar would be built straight upwards and with the gates closed the gap between the heel of the gate and the face of the pillar would have been substantially less than in fact turned out to be the case. The dimension of the gap that I envisaged would not have allowed anyone to fit their head through the gap as happened in the accident."

10. At para 46, he said that he was not involved in the decision to change the design of the pillar so as to create a gap between the heel of the gate and the side of the pillar of 160 mm. Nevertheless, he saw the gap and said that he "not pick it up as a potential hazard".
11. In his ruling, the judge recorded that B, the managing director of Came UK, part of a group of companies which was the largest supplier of electrical gate equipment in the UK, accepted that locating the egress button on the inner face of a pillar was common practice at the time. Dr Swan, a specialist inspector with the Health and Safety Executive, who was called on behalf of the Crown, agreed that there was no standard that prohibited its being located there, although he said that in his opinion the button should have been placed at least 850 mm from the gate or pillar, perhaps on a post, in order to prevent operation of the gates by a person outside the property except by remote function.
12. The prosecution sought to prove its case by pointing to the bare fact that JK had died, but supplemented this by alleging and seeking to prove that EGS (and indeed the other defendants) had been in breach of a number of regulatory requirements, relevant European Norms and British Standards and codes of practice. We say more about the way in which the prosecution supplemented its case later in this judgment.

The ruling on count 3

13. At para 6, the judge said:

"In order to engage section 3, the prosecution must prove against each defendant to the criminal standard that:"

(a). There was a material risk to JK and/or to the other non-employees' health and safety which any reasonable company in the defendant's position would appreciate and take steps to guard against ("appreciable and foreseeable risk") and

(b). JK and/or any other non-employee was exposed to that risk by the manner in which the defendant conducted the construction and installation of the gates ("the connection or causation").

14. At para 34, he said:

"Whilst undoubtedly, the accessibility of the egress button played a material part in the accident, the question arises whether, to P, it represented an appreciable risk. On its own, probably not, given there were several alternative methods to gain entry legitimately. Dr Swan's opinion that the button should have been on a post was based only on norms and standards relating to dangerous machinery generally, there being no regulations or guidance about the positioning of gate buttons."

15. At paras 36 and 37, the judge considered whether EGS was a "designer" within the meaning of regulation 2 of the Construction (Design and Management) Regulations 1994 ("CDMR"), whether the gates were part of the "structure" as defined in that regulation 2 of the CDMR and whether EGS was a "contractor" as defined in that regulation. He held that EGS was not subject to the CDMR because the gates were not part of the "structure".
16. He expressed his overall conclusion in the following terms:

"39. The prosecution cannot, in my view, satisfactorily establish a connection between EGS conduct and the accident or that the risk was foreseeable in their case or that it should have been foreseeable. It was too remote."

40. Looking at the case against EGS on count 3 in the round, and applying the Galbraith test, in my judgement there is insufficient evidence, taking the prosecution case at its highest, upon which a jury properly directed could properly convict and I will in due course direct the jury to return a not guilty verdict."

Discussion

17. It is submitted on behalf of the prosecution that the judge misdirected himself as to what it had to prove in order to establish a breach of duty under section 3 of the 1974 Act. We agree.
18. The judge rightly recognised that the decision of the House of Lords in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73, [2008] 1 WLR 1 was highly relevant to the issue that he had to decide. That was a case which concerned a prosecution under section 2(1) and 3(1) of the 1974 Act. A central question was whether the prosecution had to identify the acts or omissions by which it was alleged that there was a breach of statutory duty by the employer. The House of Lords held that all that was required was that the prosecution prove that the result described in the statutory provisions had not been achieved or prevented (as the case may be), whereupon the onus passed to the defendant employer to establish, on a balance of probabilities, that it was not reasonably practicable for the employer to do more than he did to achieve the required objectives of health and safety.
19. Lord Hope gave the leading speech. He said at [17] that the duties imposed by sections 2(1) and 3(1) are expressed in general terms. They "describe a result which the employer must achieve or prevent". The duties are not absolute, since they are qualified by the words "so far as is reasonably practicable". At [18], Lord Hope said: "It is the result that these duties prescribe, not any particular means of achieving it". At [21], he said:

"For these reasons I would reject Mr Lissack's primary submission that sections 2(1) and 3(1) require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of the duty to achieve or prevent the result that they describe. What the prosecution must prove is that the result that those provisions describe was not achieved or prevented. Once that is done a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which section 40 provides on grounds of reasonable practicability. A contrast may be drawn with sections 4 to 6, which set out a series of more particular measures that must be taken. Where breaches of those sections are alleged, the respects in which there was a breach must be identified."

20. At [22] to [26], under the heading "prosecution practice", Lord Hope discussed how the prosecution can prove its case. At [22], he said:

"Mr Lissack then said that it was not enough for the prosecution simply to assert that a state of affairs existed. This proposition raises the issue of prosecution practice. As I have said, the statute prescribes the result that must be achieved. That is one thing. How the prosecution proposes to prove that this was so is another. The situation will vary from case to case. In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer, or the person by whose undertaking he was liable to be affected, has failed to ensure his health and safety. Otherwise there would have been no accident. But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees, or the persons referred to in section 3(1) as the case may be, were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking"

21. Under the heading "Proportionality" at [27], Lord Hope said this:

"The question then is whether this approach to the legislation is proportionate. The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. In R v Porter [2008] ICR 1259, the Court of Appeal set aside the conviction of the headmaster of a school where one of his pupils lost his footing on a step which gave access from one playground to another while he was unsupervised, with tragic consequences. It held that there was no evidence that the conduct of the school had exposed the child to a real risk: para 22. The situation was not such as to give rise to a risk of the type that section 3 identifies: para 25. That was an exceptional case, but it makes an important point. The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the work "risk" which the statute uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against. "

22. Lord Brown agreed with Lord Hope. At [44], he said that sections 2 and 3 do not impose a duty merely to take reasonable care; rather they impose a duty on employers to ensure health and safety, leaving it to the employers to establish if they can, on the balance of probabilities, that it was not reasonably practicable for them to do more than they did to achieve the required objectives of health and safety. He concluded: "It is unnecessary for the prosecutor to identify, allege and prove specific failures on the employer's part, for all the world as if these were necessary ingredients of the offence charged."
23. Thus, in the present case, the burden is on the prosecution to prove to the criminal standard that EGS failed to conduct its undertaking in such a way as to ensure that persons not in its employment who might be affected thereby were not exposed to risks to their health or safety. As Lord Hope made clear at [27] of his speech in Chargot, the risks must be "material" risks to health or safety. The judge may have misunderstood what Lord Hope meant by a "material" risk. In our judgment, Lord Hope was referring back to the earlier part of [27], where he said that the legislation is only concerned with risks that are not trivial or fanciful. A risk that is trivial or fanciful is not material.
24. It is not entirely clear to us why Lord Hope added the words "where there is a material risk to health and safety" with the words "which any reasonable person would appreciate and take steps to guard against". We think the explanation is that he considered that, in practice, any reasonable person would appreciate and take steps to guard against a risk which is more than trivial or fanciful. In other words, it is helpful to ask whether a reasonable person would appreciate and guard against the risk in deciding whether the risk is more than trivial or fanciful.
25. But we do not think that it is incumbent on the prosecution to prove that the risk was one which any reasonable person would appreciate and take steps to guard against. The language of section 3(1) is clear and, save for the qualification introduced by the words "so far as reasonably practicable", unqualified. The word "risk" has been interpreted in Chargot as meaning a risk which is not trivial or fanciful, but that is not a qualification to the statutory provision. It is a question of fact and degree whether a risk is trivial or fanciful. It is pre-eminently a jury question.
26. The judge was, therefore, wrong to say at para 6 of his ruling that the prosecution had to prove that there was a "material risk to...health and safety which any reasonable company in the defendant's position would appreciate and guard against ("the appreciable and foreseeable risk")". This view of what the prosecution had to prove led the judge to make statements such as those in para 34 (see [14] above). The prosecution did not have to prove that the risk was appreciable or foreseeable. They had to prove that the risk was not fanciful and was more than trivial.
27. In any event, it is strictly inapt to speak of a risk being foreseeable. A risk is a present potential danger the existence of which may or may not be appreciated: see per Steyn LJ in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, 1177F, approved in Chargot at [20]. If the risk eventuates and an accident occurs, then a question may arise in the context of a section 40 defence as to whether the accident was foreseeable or unforeseeable: see R v H.T.M. Ltd [2006] EWCA Crim 1156. But it is not relevant to the issue of whether the prosecution has proved the existence of a material risk. It may be that the judge used the word "foreseeable" inaccurately and that he used it interchangeably with "would have been appreciated".
28. For the same reasons, the judge was also wrong to say at para 39 that "the prosecution cannot establish….that the risk was foreseeable….or that it should have been foreseeable. It was too remote." Further, we regret that we cannot agree with the judge's statement that "the prosecution cannot...establish a connection between [EGS'] conduct and the accident..." Causation is not an essential ingredient of the offence. The prosecution did not have to establish that EGS caused the accident, although in the present case, as in most, they did in fact rely on a causal connection between ESG's acts and omissions as going to establish risk. They merely had to prove that EGS exposed persons not its employment to risks to their health or safety. Nor do we understand the reference to remoteness. It would appear that the judge was treating the prosecution as if it were a civil claim for damages for breach of statutory duty. But it is clear from Chargot that this is the wrong approach.
29. On behalf of EGS, Mr Compton does not seriously argue that the judge directed himself correctly. He submits, however, that there was no evidence that the egress button increased the likelihood of the risk to health and safety eventuating. He relies on the evidence of Mr B who said that it was common practice to place the egress button on the inside face of the pillar to which the gates were fixed. He submits that the judge was best able to assess the evidence that he had heard and that this court should not interfere with that assessment. We note in passing that there is no reason to suppose that the common practice of which B spoke applies where there is a gap between gate and pillar large enough for a young person to lean through as JK did on 13 April 2006.
30. We cannot accept these submissions. The question whether in all the circumstances of the case the siting of the pedestrian egress button exposed persons not in EGS's employment to a material risk to their health or safety was pre-eminently one for the jury to decide. The fact that the egress button was within reach from the outside and a death resulted from a child reaching through the gap and pressing the button raised a prima facie case of breach of section 3(1) of the 1974 Act without more. As Lord Hope said at [21] in Chargot, once the result that section 3(1) describes is not achieved, a prima facie case of breach is established and the onus passes to the defendant to make good the section 40 defence, if that defence is raised. He made the same point at [22], where he said that where an injury is caused, the facts will speak for themselves. If the judge had focused on this simple way of putting the case, he would surely have rejected the submission of no case to answer. It may well be that he was distracted by the complicated way in which the prosecution was presented.
31. Even if (contrary to the above) it was incumbent on the prosecution to prove that the siting of the egress button exposed persons not in EGS's employment to a risk to their health or safety which any reasonable person in EGS's position would have appreciated and guarded against, that question too would be pre-eminently one for the jury to decide.
32. We should add that, in reaching our conclusion, we have not found it necessary to consider what the judge said about the prosecution's case that EGS had committed breaches of various regulations, standards and codes of practice. In our judgment, the simple fact that the gap between the pillar and the gates (when they were closed) was wide enough to enable a 9 year old child to press the egress button from the outside and open the gates raised a prima facie case of breach of section 3(1) of the 1974 Act.

Count 4

33. Count 4 is in these terms:

"STATEMENT OF OFFENCE

Supplying machinery which did not comply with the requirements of Regulation 12 of the Supply of Machinery (Safety) Regulations 1992 contrary to Regulations 11 and 29 of the Supply of Machinery (Safety) Regulations 1992 and section 2(2) of the European Communities Act 1972.

PARTICULARS OF OFFENCE

EGS LIMITED between the 1^st day of May 2005 and the 14^th day of April 2006, being a responsible person, supplied relevant machinery which failed to comply with the requirements of Regulation 12, namely, that the relevant machinery satisfied the relevant essential health and safety requirements."

34. The judge held that EGS was a "responsible person" within the meaning of regulation 2 of the SMSR. Regulation 11(1) provides that "no person who is a responsible person shall supply relevant machinery unless the requirements of regulation 12 are complied with". Regulation 12(1) provides that the requirements of this regulation are that "(a) the relevant machinery or relevant safety component satisfies the relevant essential health and safety requirements". The "relevant health and safety requirements" means the requirements in Annex 1 of the Machinery Directive which is set out in Schedule 3 to the SMSR: see regulation 2. Schedule 3 contains approximately 30 pages of detailed requirements relating to the design and construction of machinery.
35. It will be seen that count 4 does not specify which of the many requirements it is alleged that EGS has not complied with. We were told that the relevant requirements were specified in Dr Swan's report. It seems that 5 requirements were mentioned in that report, although by the time of the trial only two were being pursued, namely paras 1.7.3 and 1.7.4 of Schedule 3. We are bound to say that we regard this as an unacceptable way of proceeding. The indictment should have been drafted so as to specify the requirements that were being relied on. We should add, however, that no point has been taken before us that the indictment is defective and the defect did not form the basis of the judge's decision to withdraw count 4 from the jury.
36. There was an issue at the trial as to whether EGS was a "supplier" of goods, namely the electric gate. It is not clear how the judge resolved this. At para 53 of his ruling, he said that he was "not entirely sure" what the "relevant health and safety requirements" of regulation 12 were. That merely serves to highlight the unsatisfactory way in which count 4 has been drafted.
37. But the judge said that he did not find it necessary to decide what the essential health and safety requirements were because regulation 31(1) of the SMSR provides that it shall be a defence to a charge of breach of regulation 11 for the defendant to show that "he took all reasonable steps and exercised all due diligence to avoid committing the offence". He said:

"55. Although the burden of establishing this lies with the defendant, one has to ask at this stage what evidence the prosecution have adduced to establish that he did not exercise due diligence.

56. On count 4, it is arguable that, given the stage he entered the work and the nature of his contribution, he did all that was reasonable, and on that basis, in my view, it would be unsafe to leave the matter to the jury."

38. We have great difficulty in seeing how the judge could come to a conclusion on the prospects of success of a regulation 31(1) defence without knowing which health and safety requirements were in play and in relation to which particular offence the defence was being relied on.
39. Be that as it may, however, it is clear that, although the judge purported to acknowledge that EGS had the burden of proving that it took all reasonable steps and exercised all due diligence to avoid committing the offence, he withdrew count 4 from the jury on the grounds that the prosecution had not adduced any or any sufficient evidence to show that EGS had not exercised due diligence. Thus, the reason why the judge withdrew count 4 was that he considered it to be arguable that EGS would make out its regulation 31 defence because the prosecution had not adduced sufficient evidence to rebut it. But there was no burden on the prosecution at that stage to adduce any evidence to rebut the defence. It was for EGS to advance the defence. If it did so, it would be the subject of evidence and argument. The prosecution would be able to test it by cross-examination of any witnesses called on behalf of the defence. But that all lay in the future. It was not open to the judge to prejudge the defence case. Until and unless the defence was raised during the defence case, it was not open to the judge to prejudge it in the way that he did.
40. We should add that a further reason why the judge should not have withdrawn count 4 was that the regulation 31(1) defence was wholly unparticularised. The Defence Statement said no more than this:

"In relation to count 4, if it is established to the necessary standard that the Defendant was "the responsible person" under the regulations, then the Defendant will aver that it took all reasonable steps and exercised all due diligent (sic) to avoid committing the offence(s)".

This was inadequate. It did not put the prosecution on notice of the case it had to meet in relation to the regulation 31(1) defence.

41. For these reasons, in our view the judge was wrong to withdraw count 4 from the jury.

Conclusion

42. For these reasons, we allowed the appeal in relation to the judge's decision to withdraw counts 3 and 4 from the jury.

Some observations on prosecution practice

43. We cannot conclude this judgment without making some observations about the way in which this prosecution of the section 3(1) offence was presented to the jury. As we have said, the prosecution relied in part on the simple fact that the result prescribed by section 3(1) was not achieved as is demonstrated by JK's death. But in addition they sought to prove that EGS was in breach of regulations, standards and codes of practice in order to support its case. This led to much evidence and argument (both as to the law and the facts) on a number of issues including the question of whether the CDMR applied to the activity of EGS at The Orchard at all. The evidence was technical and must have been difficult for the jury to follow. It is not clear from his ruling that the judge entirely followed it. It undoubtedly added considerably to the length of the trial. The prosecution evidence occupied 6 ½ days of court time.
44. We were told by Mr Parry that it is common practice for prosecutions to be presented in this way even in cases where a death or injury has resulted from the alleged breach of section 3(1). This is often done in anticipation of a section 40 defence where the defendant says that it was not reasonably practicable for him to do more than he did to achieve the required objectives of health and safety because he complied with all relevant regulations, standards and codes of practice. In a case where that issue has been properly raised and particularised in the Defence Statement, it is obviously appropriate that the prosecution should be able to lead evidence, whether as part of its case as opened or, in appropriate circumstances, in rebuttal to show that the defendant did not comply with the regulations, standards or codes of practice relied on. But the evidence should be directed to the particular points relied on in the Defence Statement.
45. In the present case, the Defence Statement did not give notice that a section 40 defence would be relied on. Mr Parry told us that it is not uncommon for judges to allow defendants to raise section 40 defences of which they have not given notice in their Defence Statements. That, he said, is the reason why prosecutors often take the course that he did in this case and lead evidence of breach of regulations, standards or codes of practice in support of an allegation of breach of section 3(1). In our judgement, judges should not normally allow a defendant to raise a section 40 defence of which reasonable notice has not been given to the prosecution. But we accept that it will always be a matter for the judge to decide whether in the particular circumstances of the case fairness requires that the defendant should be permitted to raise a section 40 defence of which notice has not been given in his Defence Statement.
46. Furthermore, prosecution cases should not be overloaded with evidence which is adduced solely in order to meet a technical case of which no notice has been given. That is not to say that it may not sometimes be appropriate for the prosecution to lead evidence of breach of regulations, standards and codes of practice in support of its own case: see Chargot at [22] and [25]. But in cases such as the present, where, to use Lord Hope's words, the facts speak for themselves and no section 40 defence has been raised, it will often not be necessary for the prosecution to seek to prove that the defendant failed to comply with regulations, standards or codes of practice. The routine practice of adducing evidence of breach of regulations, standards and codes of practice is inconsistent with the ratio of Chargot that section 3(1) does not require the prosecution to identify and prove the acts and omissions by which it is alleged that there was a breach of duty, unless fairness so requires: see [24] to [26] of Chargot.

Case management

47. In the light of the problems that have been illustrated by this case, we suggest that in health and safety prosecutions in the Crown Court, at all events when the matter is not the subject of an early plea, a judge may need to be nominated at an early stage to manage the case to trial. This should be done in all cases involving death or very serious injury and in any other cases where there is potential complexity. It should be the duty of all advocates to raise this with the judge at the first plea and case management hearing, so that in an appropriate case suitable directions for a nominated judge may be given. Thereafter, those cases which proceed to trial should be vigorously case managed by the nominated judge, who should be astute to ensure, in advance of the trial, that the parties confine the case to the issues that really matter and that the case does not become overloaded.
48. We are told that in this case no judge was nominated. It seems that at the pre-trial hearings that were held, no attempt was made to define and delimit the issues. In the result, the jury were presented with an unduly and unnecessarily complicated case. Proper case management by a nominated trial judge should ensure that the situation that arose here does not readily occur again.