England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/11/2018

Lady Justice Macur DBE:

1. This is an appeal against conviction by Andrew Winterton ('the Appellant') with the permission of the single judge against his conviction for gross negligence manslaughter of Shane Wilkinson on 7 June 2017 in the Crown Court at Northampton (Count 7). He was also convicted of three counts alleging breaches of ss 7 and 37 of the Health and Safety at Work etc Act 1974 (Counts 8 – 10). On 30 June 2017 he was sentenced to four years' imprisonment on Count 7, and 12 months' imprisonment concurrent on each of Counts 8 – 10, making a total sentence of four years' imprisonment. He was also ordered to pay £20 000 towards the prosecution's costs and the statutory victim surcharge.
2. There were a number of co-defendants. Dean Wortley was acquitted of manslaughter but convicted of health and safety offences. He received 12 months' imprisonment. Conquest Home LLP ('Conquest') was convicted of health and safety offences and was fined a total of £55 000. Dean Wortley and another man, James Taylor, were acquitted of a count of attempting to pervert the course of justice in relation to a back dated risk assessment and method statement that had been created by Dean Wortley following Mr Wilkinson's death.

The facts

3. The facts of this tragic case are as follows. The deceased was a man called Shane Wilkinson who was a labourer on a building site in the village of Collyweston in Northamptonshire. The project concerned the development by Conquest of nine new-build houses in a cul-de-sac just off the A43. An L-shaped trench had been dug in front and at the side of one of the houses, already occupied, for the laying of drainage pipes. At about 3pm on 4 September 2014 Mr Wilkinson was standing either in the trench or at its edge when it collapsed. He was buried in earth and rubble and suffered severe blunt force trauma to his head, which caused a large skull fracture from which he died.
4. The Appellant was the construction site manager and a director of Conquest. He accepted at trial that he had overall responsibility for health and safety at the site. The prosecution's case was the accident was entirely foreseeable and preventable and that it had been caused by the gross negligence of the Appellant (and Mr Wortley, although he was acquitted, as we have said). Mr Wortley traded under the name of Clearview Demolition. He had been hired by the Appellant to excavate the trench using a digger. He was assisted by Dan Miller, and later by Mr Wilkinson.
5. Also present on site was Jaroslav Kondrats, who was referred to at trial as Jarek. He was the site foreman. The Appellant said that when he was not on site Jarek Kondrats would 'keep an eye' on matters for him and could contact him by mobile phone; it was Jarek Kondrats' job to carry out risk assessments, who decided on individual tasks and was in charge when the Appellant was not there. However, Jarek Kondrats' evidence was that apart from going on a scaffolding course, he had not received any health and safety training and that, although he was the Appellant's 'right hand man' he was responsible for things such as loading and unloading materials. It was the Appellant who retained responsibility for health and safety and for making sure that the work on site was done properly and safety.
6. The prosecution's case related to the way in which the trench was dug. It was some 2 metres deep. Its sides were not battered (ie, slanted) back, but were vertical and unsupported. It was the prosecution's case that it was, or should have been, obvious that there was a risk that the trench would collapse and that this presented a clear and obvious risk of death to anyone standing at the edge of, or in, the trench.
7. David Wonford, a civil engineer, called by the prosecution as an expert witness, said that a report on the site before construction began had concluded that the soil was likely to be loose with hard spots, and that it was prone to collapse. He therefore said that precautions should have been taken to prevent the trench from collapsing; hazards in relation to trenches are well known and well-documented. The sides of the trench should have been battered back to a 45-degree angle; a 2 metre deep trench which was 600 mm wide at the bottom (as the trench in question was) should have been 4.6 metres wide at the top. He told the jury that:

"No work should take place until a competent person who fully understands the dangers and necessary precautions has inspected excavation supports at the start of the shift.

The collapse was foreseeable but when it would collapse could not be foreseen, so precautions to protect those in the trench, either by a trench box [ie, a metal structure used for protecting workers working in a trench] or battering and those who might fall in by way of handrails must be put in place. If Shane was being asked to go into the trench it should've been supported … The principal contractor has to engage a competent contractor. I don't think Clearview was competent to do the work and this was illustrated by the fact that the trench collapsed.

The trench alone without it collapsing would've been sufficient for an HS[E] inspector to have stopped work. Any competent person would have attempted to stop the work. The same applied to Conquest: a competent principal contractor would not have allowed that work to proceed without protection of battering.

Representatives of the principal contractor should have been competent enough to recognise that these works were not being done safely and to have stopped the work. If the representative had failed to stop it, the company has failed. If the company's not putting competent eyes and ears on the ground, then it has failed.

I'm not aware that Conquest had sight of documentation to prove that Mr Wortley could manage health and safety. From what I've seen evidence, he could not manage health and safety and this would have been obvious to a site manager, Mr Winterton, if the site manager had seen a particular excavation."

Mr Wonford was shown a photo of the trench and he said that it :

"Shows a face which is pretty nearly vertical. It's not unsafe if a person is not in it. The gravel makes it less safe. Nowhere near the width it should be if the excavation was 2m deep. A competent site manager would've known what equipment the sides would be battered back, remove any men from inside the trench …"

8. Paul Burrows, an employee of Anglian Water, who visited the site the day before the trench collapsed to assess the suitability of the drainage system for adoption by Anglian Water, saw the way in which the trench was being excavated and warned that it was dangerous (although the part he viewed was not the part that collapsed). His evidence was:

"There was a person compacting stone in the trench using a whacker. There was a digger outside plot 6 with an operator in it. The depth gave me concern as I said there should've been some trench support; using a vibrating tool in a trench is not safe. The side of the trench might fall in. The depth was either waist or head height; it was very stony ground, it made me say something. I told the person in the trench words to the effect that it wasn't clever to be doing that … I said about there being no trench support. The man in the trench did not say anything … to me. I made my point to him; he didn't say a lot. I was introduced to the person on the digger by the site manager/agent and I asked the man on the digger about granular fill. I said about there being no trench support. The trench looked stony and looked like a wall with Collyweston stone. I was told it was alright and it was really good ground. I'd said my piece really … It was not my remit but I said something because it looked unsafe and everyone has a duty of care."

Mr Burrows said that the did not think the Appellant had been there when he had had this conversation, although it was put to him on behalf of Mr Wortley that the Appellant had been present.

9. The prosecution's primary case was that the Appellant knew that the trench had been dug in a manner which was obviously dangerous and that, in breach of the duty of care he owed to the workers on the site, including Shane Wilkinson, he did nothing about it with the consequence that Mr Wilkinson died; that the Appellant's failures were so bad as to amount to gross negligence, and so he was guilty of manslaughter. The prosecution said that the Appellant could not have failed to see that the trench was dangerous. It had been dug over a seven-day period (26 August – 3 September) and the Appellant's own evidence was that he visited the site daily, and sometimes more than once a day. He had to walk past the trench to reach the area of the site where new houses were being built, and so he must have seen how the trench was being constructed. In accordance with Mr Wonford's evidence, any competent site manager would have acted to prevent further work on the trench, or in it, until it had been made safe.
10. Alternatively, if the Appellant had not known about how the trench had been constructed then he should have known, because he was responsible for health and safety at the site, he had been responsible for hiring Clearview Demolition and Mr Wortley to do the work, and he had the responsibility of monitoring their work.
11. At the close of the prosecution case the Appellant made a submission that there was no case for him to answer on Count 7 because there was no evidence that he had ever witnessed a trench in an open and dangerous condition; no evidence that he ever saw anyone working in the trench which was not battered; and there was a site foreman present at all times, namely Jarek Kondrats.
12. In response, the prosecution pointed to: the expert evidence that the trench was dangerous and prone to collapse, the question being when and not if it would collapse, and that the Appellant should have stopped work on the trench until it was made safe; the evidence of Mr Burrows, who warned the day before the accident that the trench was unsafe; evidence that Dean Wortley was obviously dangerous and incompetent and this should have been obvious to any competent supervisor; that Jarek Kondrats was not qualified; and, the Appellant's acknowledgment in interview that he was responsible for health and safety and he had visited the site daily, and sometimes more than once a day. In short, the prosecution said that the Appellant could not have failed to notice the trench, and yet he took no steps to prevent the obvious risk of fatality, and that the assessment of whether his failures were grossly negligent so as to amount to a crime was pre-eminently for the jury to assess.
13. The judge rejected the defence's submission. As to the first point made on behalf of the Appellant, he said, 'But he should have'. The judge held that there was sufficient evidence upon which a reasonable jury, properly directed, could convict the Appellant.
14. The Appellant's case was that he planned the excavation properly with Jarek Kondrats. He said he chose a competent contractor to do the work and was satisfied that the work as it progressed did not present a danger of death to those persons on site to whom he owed a duty of care. It was argued on his behalf that there was nothing risky in the way in which Dean Wortley and the others excavated the trench. He told the jury that he never saw an open and unbattered trench. He said that the only open trench he saw was just 18 inches deep.
15. The judge summarised the prosecution case to the jury in terms:

"… Mr Winterton was on site daily and that he should have been aware that the trenches were not being battered back or that other precautions were not being taken to prevent collapse.

With that knowledge, Andy Winterton should have stopped any further work on the trench and yet did nothing and this led to the collapse of the trench which killed Shane Wilkinson."

16. The judge prepared a lengthy route to verdict setting out the various issues which the jury had to consider in relation to the counts on the indictment. It was not in dispute that the Appellant owed a duty of care to those on the site including Mr Wilkinson. Questions 33 – 37 addressed the other elements of the offence of gross negligence manslaughter as follows:

"Q33. Are we sure that Dean Wortley and the others with him were carrying out the excavation of the trenches in a way that presented an obvious risk of death to those on the site?

If your answer to this question is no, you will find Andrew Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 34.

Q34 Are we sure that Andrew Winterton knew about this or should have known about this?

If the answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 35.

Q35 Are we sure that Andrew Winterton was in breach of his duty of care to Shane Wilkinson by failing to prevent Dean Wortley from carrying out the work in the manner which carried the risk of death?

If the answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 36.

Q36 Are we sure that this breach of duty caused or significantly contributed to the death of Shane Wilkinson ?

If the answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, proceed to question 37.

Q37 Taking into account the risk of death from the collapse of a trench, are we convinced that in failing to prevent Dean Wortley from carrying out work on the trench in a manner which carried the risk of death, Andy Winterton was responsible for a breach of duty that was gross? In other words, that it went far beyond incompetence or even serious negligence so that it can properly be characterised as a serious crime; namely, manslaughter?

If your answer to this question is no, you will find Mr Winterton not guilty of count 7 and your deliberations will cease. If the answer to this question is yes, you will find him guilty of count 7 and your deliberations will cease."

17. The jury convicted.

The application for permission to appeal and the single judge's ruling

18. The Appellant sought permission to appeal on the following grounds:

a. 1. The judge was wrong to have rejected the Appellant's submission that there was no case for him to answer.

b. 2 and 3. The judge erred in giving the jury "a lengthy document on the law and the issues before the jury which was not the usual "route to verdict" document and that it was deficient because it did not mention the Appellant's defence that he genuinely thought Jarek Kondrats was competent.

c. 4. The judge was wrong to allow cross-examination of the Appellant in relation to the back dated risk assessment and method statement that had been created by Dean Wortley following Mr Wilkinson's death.

d. 5. The judge wrongly allowed the prosecution to adduce some rebuttal evidence about Dean Wortley's dealings with Anglian Water which was prejudicial to the Appellant's case.

19. Subsequently, the Appellant added a further ground of appeal (Ground 3.1) which was that the judge erred in law in directing the jury that they were entitled to consider what the Appellant ought to have known about the way in which the trenches were being dug on site at the time of any alleged breach of duty by him, in reliance of the decision of this court in R v Honey Rose [2017] EWCA Crim 1168.
20. The single judge refused permission on Grounds 1 – 5 and granted permission on Ground 3.1. The application for permission has not been not renewed on Grounds 2 – 5 and so it is unnecessary to say any more about them. In relation to Ground 1 (which is, in essence, a repetition of the submission made to the judge at the close of the prosecution's case) the single judge said that the judge's response to the argument that there was no evidence that the Appellant had seen a dangerous trench, namely 'But he should have', was arguably wrong on the basis of R v Honey Rose [2017], but that there was sufficient evidence to go to the jury. The Appellant renews his application for permission to appeal in relation to this ground.
21. In relation to Ground 3.1 the single judge said that in light of R v Honey Rose, supra, it was arguable and granted leave.

Submissions

22. The arguments advanced in relation to both renewed application and the appeal necessarily overlap. Mr Trembath QC, on behalf of the Appellant, challenges as legally unsound the second way in which the prosecution put its case, namely that the Appellant could be guilty (subject to the other elements of the offence being proved) if he did not know the trench was being constructed in an unsafe manner but should have known. On the basis of the ratio in R v Honey Rose [2017] EWCA 1168 the Appellant could only be guilty if he actually saw the trench in an unsafe state with someone working inside, and there was no such evidence; question 34 was erroneous in point of law in as much as it contained the words '…or should have known about this'.
23. In oral submissions before us he refers to the direct evidence that the trench was excavated, and backfilled after pipes laid, in two sections over the course of 7 days which, he said, substantiated the Appellant's evidence at trial that he had never seen the trench in the circumstances described by others and which would have alerted him to risk. He maintains that the prosecution would need to prove that Appellant had actual knowledge of the serious and obvious risk of death, and that to direct, as the judge did in posing question 34 in terms of "knew about this, or should have known about it" was simply wrong. Having regard to the appellant's convictions in relation to breaches of the Health and Safety at Work, etc Act 1974, there was a risk that the jury had decided that those statutory breaches fixed him with the necessary foreseeability required to establish guilt of the offence of gross negligence manslaughter, but this would have been in retrospect, not prospect.
24. There is a comprehensive and detailed Respondent's Notice in relation to initial and secondary grounds of appeal. Mr Glasgow QC, on behalf of the Respondent, has relied upon and reiterated them before us. In summary, there was compelling evidence in relation to the dangerous way the trench was being excavated, and the obvious danger which it posed, that should have alerted any competent supervisor that the subcontractors executing the works were incompetent and unsafe. The Appellant had responsibility for health and safety on the site and during the relevant 7-day period was a regular visitor to the site. It would have been impossible for him not to have seen the state of the excavation. The criticism of the judge's directions in law is premised on a misreading of them and a misunderstanding of the Court of Appeal's decision in R v Honey Rose, supra. The Respondent's Notice argues:

"Unlike the facts in R v Rose, the breach of the duty of care alleged against the appellant had nothing to do with a failure to carry out checks that would have put the appellant in possession of particular knowledge…

It was unnecessary for the appellant to carry out any particular inspection or investigation (as was required by the optometrist in R v Rose or the doctor in R v Rudding [2016] EWCA Crim 741) All he needed to do was open his eyes and ensure the health and safety of persons at the site as he accepted he was required to do. His position therefore is no different from the anaesthetist who failed to observe the disconnected endotracheal tube (see R v Adomako (1994) 98 Cr App R 282) or the doctors who allowed a post operative condition to go untreated (see R v Misra and Srivastava [2005] 1 Cr App R 21 ): those appellants failed to appreciate the danger that was obvious to everyone else and should have been obvious to them…. It was not a case of what [the Appellant] "ought to have known" had he carried out any investigation, but rather a case of what he should have known because it could not have been missed….the risk in this case was 'clear and unambiguous' and 'not one which might be apparent on further examination'."

That is, the judge was not wrong in his formulation of Question 34 or otherwise in his directions or summing up.

Discussion

25. We are in no doubt that the judge was right to leave this case to the jury at the close of the Prosecution case. Even on the basis of Mr Trembath's contention as to the pertinent law, there was evidence from which the jury could conclude that the appellant was actually aware of the method of excavation and that it was dangerous and there was a serious risk of death There was no issue but that he owed a duty of care to the workers on the site. The question as to whether the negligence alleged was so gross to be criminal was a matter for the jury. We therefore dismiss the renewed application for permission to appeal against conviction.
26. The ratio of this court in R v Honey Rose [2017] is that "The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach" [@ para 80]. The "factual matrix is critical" [ @ para85].
27. We regard the evidence in this case regarding the excavation of the trench, depicted so starkly in a photograph handed to us during the appeal and which had been in the jury bundle, clearly demonstrated the dangerous workmanship that posed a real and significant risk of death. Further, there was evidence from which the jury could have concluded that the Appellant had actual knowledge of the same, or otherwise adopted a wilful blindness/ignorance of the excavation of what would necessarily be a deep drainage trench in unstable ground and therefore intrinsically dangerous. The Appellant's duty of care to those on site would be continuous throughout the excavation. The breach of duty was ongoing from the time that excavation of the trench had reached a stage which required battering or other means of support and required a workman to enter into it to lay the pipes, or else allowed them to encroach on the area next to it.
28. The factual matrix in this case was that it was a question of 'when' not 'if' the trench would collapse, and this was or should have been apparent to anybody. Consequently, there was reasonable foreseeability of serious and obvious risk of death to anyone in or near the trench. The Appellant's breach of duty is not able to be cast as that in the case of the optometrist in R v Honey Rose, and the GP in R v Rudding. They were not sufficiently alerted – and had no cause to be - to the risk of death on the facts available to them at the time of the breach of their respective duties of care, and which when objectively assessed should have alerted them to the serious and obvious risk of death. For example, in R v Honey Rose, the deceased little boy did not present with symptoms which should have put the optometrist on notice that there might be increased pressure in his brain, so alerting her to the positive need to examine the back of his eyes. In both cases, the prosecution was inviting the jury to a retrospective scrutiny of foreseeability of death on the basis of the ultimate and fatal outcome of the progress of a disease that could have been detected sooner but for breach of their duty of care, not that this risk should have been apparent to them prospectively at the moment they failed to investigate further.
29. The evidence in this case simply does not permit Mr Trembath to argue that 'but for the trench collapse, no objective observer would have been aware from the facts available to the Appellant at the time that there was a significant risk of death arising from his breach of duty.' We agree with Mr Glasgow that this Appellant is in the position of the anaesthetist in Adomako and the doctors in Misra and Strivastata, the warning signs and serious and obvious risk of death were there for them to see. They either did see them and ignored them, or failed to do so in circumstances that would provoke an objective observer to say, 'but on the facts and in their position they should have done'.
30. The judgment in R v Honey Rose was handed down several weeks after his summing up, but we do not consider that the judge's directions would have markedly altered in any way if the sequence had been reversed. We are not persuaded that the judge's directions of law in relation to the offences contrary to sections 7 and 37 of the Health and Safety at Work etc Act, 1974, would confuse the jury as to what the prosecution must prove to establish the Appellant's guilt of gross negligence manslaughter. The judge's directions of law in respect of these offences are not challenged. It follows that we do not find the judge to have fallen into error in directing the jury as he did, or in the formulation of his route to verdict. The appeal against conviction is dismissed.