Jersey Unreported Judgments

Health and safety - legal issues during trial

[2024]JRC051

Royal Court

(Samedi)

1 March 2024

Before     :

R. J. MacRae, Esq., Deputy Bailiff

The Attorney General

-v-

Skinner Skips Limited

A. M. Harrison Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        In the trial in this case (8 to 10 January 2024), a number of legal issues arose which it was necessary to resolve in the absence of the Jurats.

2.        I now give reasons for those decisions, where reasons were not given in the course of the trial.

3.        It is helpful, at the outset, so as to put the matters in context, to summarise the prosecution case.

4.        Skinner Skips Limited ("the Defendant") is a Jersey company specialising in skip hire.  It operates from a workshop in St Peter where it undertakes, inter alia, repair and maintenance of lorries. 

5.        The Defendant was under a duty under Article 3 of the Health and Safety at Work (Jersey) Law 1989 ("the Law") to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees.  Paul Skinner, who used to but no longer owns the Defendant, is both managing director of the Defendant and an employee. 

6.        On 13 October 2022, Mr Skinner and two colleagues, Jose Goncalves and Andrew Lihou, were working on a Volvo truck.  In order to test that the brakes were working at all (prior to a subsequent road test which was planned) the rear of the lorry was raised off the workshop floor using a trolley jack.  Prior to climbing into the vehicle and starting the engine, Mr Skinner or one of the other employees ensured that the lorry was secured using a post lift on the nearside on the front which acted as a chock to stop the vehicle rolling.  Mr Skinner climbed into the lorry at the front, started the engine and put it in gear.  The rear wheels rotated (the lorry was rear wheel drive) and he tested the brakes - Mr Goncalves letting him know whether or not the wheels were stopping when the brakes were applied.

7.        Mr Goncalves was working at the rear of the vehicle and Mr Lihou at the front when the brake test was carried out.  Mr Lihou said:

"This is something we do all the time after brake repairs.  What they do is jack up the rear of the vehicle so that the driven wheels are off the ground and then start the vehicle, put it in gear so that the wheels are driven round.  One of the mechanics will then watch the wheels while the brakes are applied to check that they work properly and listen for any sounds such as air leaks."

8.        When Mr Skinner alighted from the lorry, he left the engine running, the vehicle in gear and the handbrake off.  Furthermore, he and Mr Goncalves, or Mr Skinner acting alone, then removed the post lift which had been acting as a chock in the front of the vehicle.

9.        Mr Skinner then went to the rear of the vehicle and, having apparently satisfied himself that the rear wheels were no longer rotating, used the trolley jack to lower the rear wheels on to the workshop floor.  The consequence was that the lorry began to move forward out of the workshop and into the yard.  Mr Skinner ran past the lorry in order to stop it.  He managed to open the cab door and throw himself into the cab in an attempt to stop the vehicle.  However, as he did this, the lorry struck another lorry causing the driver's door to close on Mr Skinner's leg which was crushed between the two vehicles causing him a serious leg injury.

First issue - The status of Mr Skinner as a prosecution witness

10.     At the directions hearing on 1 November 2023, and indeed throughout, save for a short period just before trial, the Crown made it clear that they intended to call Mr Skinner as a prosecution witness.

11.     At the directions hearing on 1 November 2023, the Crown confirmed expressly that they were proposing to call Mr Skinner as a prosecution witness, the Court having queried that decision.  The defence made it clear that Mr Skinner was their principal point of contact at the Defendant, and they needed to have contact with him for the purpose of taking instructions from the Defendant.

12.     The Crown expressed concern about this matter and initially insisted on compliance with the Attorney's General's guidance on the contact by defence lawyers with complainants and prosecution witnesses issued in November 2019, which is a helpful guide and sets out a clear process to be adopted when a defence lawyer wishes to speak to a complainant or prosecution witness - although perhaps not designed for the circumstances of this case. 

13.     In any event, it was clear that the Crown had applied its mind closely to Mr Skinner's status as a prosecution witness. 

14.     However, on the Wednesday evening, i.e. two working days before the trial began, the Crown Advocate wrote to defence counsel at 6pm saying:

"I write with reference to the above captioned case and in particular in relation to the status of Mr Paul Skinner who is currently both a prosecution witness and the individual nominated by Skinner Skips Limited to attend trial and instruct defence counsel on behalf of the company at trial.  We have reviewed the case as we approach trial.  In view of the circumstances and the defence advanced on behalf of the company we have taken the decision not to rely on him as a prosecution witness."

15.     The defence advanced on behalf of the company was clear from the defence case statement dated 10 November 2023 - provided two months before trial - which says:

"The Defendant employed Mr Skinner as its managing director.  Mr Skinner was the person primarily responsible for Health and Safety at work.  Mr Skinner has a wealth of experience in dealing with Health and Safety matters.  Mr Skinner ignored what would have been his own advice and proceeded on a frolic of his own which could not reasonably have been foreseen by the Defendant."

16.     Although not set out in the defence case statement, this clearly was a reference to Article 22 of the Law which is entitled "Offences due to fault of other person" and to which I will need to refer again below.

17.     In response to the email, defence counsel sought confirmation that the Crown would be tendering Mr Skinner as a witness.  The response was that they would not be doing so. 

18.     The defence argued that the Crown was changing horse very late in the day and should be directed to tender Mr Skinner as a prosecution witness.  During argument, the Crown Advocate said that the decision to no longer rely on Mr Skinner or call him as a witness had been made last week.  There was no suggestion that Mr Skinner's evidence had changed, and the Crown Advocate confirmed that it regarded Mr Skinner as a prosecution witness for over a year.  The Crown said that in view of the fact that he was a director of the Defendant and he was giving defence counsel instructions, it was no longer thought appropriate to call him as a witness.  The Crown Advocate said that the considerations that gave rise to the Crown's decision did not arise from any change in the assessment of Mr Skinner's credibility and that the decision had been taken in good faith, having regard to the need for the proceedings to be fair.  The Crown Advocate accepted that whether or not Mr Skinner should give evidence as a prosecution witness was ultimately a matter for the Court and said that none of the relevant authorities dealt with this situation.

19.     Defence counsel said that nothing had changed to justify this late alteration in the Crown's position.  The defence had prepared their case on the basis that Mr Skinner would be cross-examined.  Mr Skinner's evidence largely accorded with the evidence of the two other witnesses as to fact that the Crown proposed to call, and the Crown was simply seeking to obtain a late procedural advantage by declining to call Mr Skinner.  If a procedural advantage had accrued to the defence by virtue of the Crown's decision, long undisturbed, to call Mr Skinner as a witness, then that was simply a feature of the adversarial system.  The defence said the Crown ought to tender Mr Skinner as a prosecution witness. 

20.     The English Court of Appeal decision of Re Kenneth Russell Jones [1995] 1 Cr AR 538, which set out the principles upon which the Crown should exercise their discretion as to whether or not to call a witness at trial.  It is clear from Jersey authority that the first principle "witnesses who are on the back of the indictment ought to be at Court, with the defence want those witnesses to attend" no longer applies in England and in any event committal proceedings have now been abolished.

21.     The second principle is that "The prosecutor has a discretion whether or not to call, or tender any witness it requires to attend, but discretion is not unfettered".

22.     The third principle is that the discretion should be exercised in the interests of justice. 

23.     The fourth principle is that the prosecution "ought normally" to call or offer to call all witnesses who give direct evidence of the primary facts of the case, unless for good reason the prosecutor regards the witness as being unworthy of belief.

24.     The fifth principle is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case.

25.     The sixth principle is that the prosecutor is the primary judge of whether the witness to the material events is incredible or unworthy of belief. 

26.     Finally, the seventh principle is that the prosecutor, properly exercising his discretion, will not be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. 

27.     The decision of Russell Jones was considered by Commissioner Clyde-Smith in AG v T [2014] JRC 039.  At paragraph 23 of that judgment, Commissioner Clyde-Smith said:

"As made clear in Archbold the Court in Russell-Jones added that these principles should not be regarded as a lexicon or rulebook to cover all cases.  There may be special situations that had not been adverted to, and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the Court will only interfere with it if he has gone wrong in principle."

28.     More recently, in Fernandes v AG [2021] JCA 164, the Jersey Court of Appeal noted the decision of the English Court of Appeal in R v Russell Jones and said that this authority summarised the principles concerning the prosecution's duty to act fairly and to call evidence. 

29.     The decision of the Royal Court in AG v Knowles [2002] JLR Note 38, not referred to in Fernandes, made it clear that the Crown, in Jersey, is not under an obligation to call the witnesses they had listed at committal or the current equivalent, namely those referred to in disclosure as witnesses they may rely upon when the case is sent from the Magistrate's Court to the Royal Court. 

30.     In my view, the Crown has a wide discretion as to which witnesses it may wish to rely upon at trial.  The Jersey system is an adversarial one and thus, for example, in a public order case, the Crown is, to my mind, not under a duty to call all the witnesses who claim to have seen what happened in, say, an alleged affray.  The Crown must make a judgment in good faith as to witnesses to call and is not bound to call witnesses whose evidence conflicts with evidence according with the main thrust of the prosecution case.

31.     The Crown Advocate needs to give careful thought in every case as to the identity of the witnesses identified as trial witnesses at the plea and directions hearing.  Such witnesses are listed on the form in Section 3 opposite the title "Which prosecution witnesses will be called to give live evidence".  In this case, Mr Skinner and three other persons were listed.  In my view, it is open for the Crown, in its discretion, to dispense with one or more of those witnesses prior to trial, but the defence should be given sufficient notice of its intention and generally a reason for dispensing with the witness in question.  It may not always be possible to give a reason and sometimes a new Crown Advocate will be instructed late in the day to review the evidence upon which the Crown relies and may legitimately take the view that the Crown can prove its case with fewer live witnesses.  In those circumstances, the defence should be provided with the contact details of the witnesses in question so that the defence can, if necessary, make steps to secure the attendance of such persons as defence witnesses (unless there is good reason for their contact details being withheld from the defence, in which case it may be necessary for this to be secured in another way).

32.     However when, as in this case, the Crown has decided at the eleventh hour not to call what was hitherto its principal witness as to fact by reference to considerations which ought to have been in the prosecutor's mind from the outset, it is wrong for the Crown to give such short notice of its new stance.  In the circumstances, I regarded it as appropriate to direct and did direct that the Crown tender Mr Skinner as a prosecution witness so that he could be cross-examined.

Second issue - Whether the prosecution expert witness should remain in Court for the duration of the trial

33.     The Crown were given leave to call Mr Louis Firmino as an expert witness.  He made a short statement dated 1 March 2023 and 15 November 2023, and a rather longer second statement dated 15 November 2023 which listed his qualifications and experience. 

34.     Usually an expert will be present in Court if the party calling them wishes them to be present, in order to hear any relevant evidence touching upon the matter that they are to give evidence. 

35.     The Court did not, as would normally be the case, give the Crown leave to call Mr Firmino as a witness at the plea and directions hearing on 1 November 2023 because at that stage he had not yet provided a statement satisfying the requirements concerning expert evidence under the Criminal Procedure Rules.  Having received that statement, the defence protested that the nature and extent of Mr Firmino's expertise was unclear. 

36.     However, the main objection to Mr Firmino's presence during the trial (prior to him giving evidence) was that the defence said that the factual basis for the evidence he was likely to give (per his witness statement) was to be challenged and it was not fair to the defendant that Mr Firmino should hear these challenges. 

37.     The Crown, rightly in my view, argued that it was important that Mr Firmino should understand the factual matrix which represented the background to his giving evidence. 

38.     I recently gave judgment in another case to the effect that generally it is important for a number of reasons for the officer in the case to remain in court during the evidence.  For quite different reasons, it is appropriate for an expert witness or witnesses also to remain present during evidence that is relevant to the matters upon which they are to assist the tribunal of fact - often the jury, but in this case the Jurats.  This remains the case in the circumstances where it was claimed that the Crown had misunderstood the nature of the brake test that Mr Skinner and others were carrying out when the accident occurred, and that Mr Firmino's evidence was, at least in part, irrelevant in consequence.  An expert is instructed in order to assist the Court; it is not helpful to the tribunal of fact for an expert to be taken by surprise so as to render their opinion irrelevant.  Of course it may be (and to some extent was in this case) a consequence of cross-examination of witnesses as to fact that part of the expert evidence in this case (in particular the reference to a Bowmonk brake tester) was irrelevant.  In part, the evidence given by Mr Firmino remained relevant and admissible - for example, in respect to the use of axle stands and a trolley jack.  It was important for Mr Firmino to understand the context in which his evidence was being given.

39.     As to the defence challenges to Mr Firmino's expertise, the standard expert evidence direction to the tribunal of fact makes it clear that they are not obliged to accept the opinion of a witness who is called as an expert. 

40.     There may be limited circumstances when it is appropriate to require an expert to absent himself from the evidence from witnesses as to fact.  For example, where the expert is also giving evidence as to fact because of certain findings he made during the examination of the scene which are inconsistent with the observations of another witness.  However, such considerations had no relevance in this case - indeed, Mr Firmino was criticised (with some justification) for not examining the lorry or visiting the workshop.

Issue 3 - The Crown's application that Mr Skinner should be cautioned during the course of his evidence in cross-examination

41.     As indicated, Mr Skinner was tendered by the Crown for the purposes of cross-examination.  During his evidence, Mr Skinner gave evidence to the effect that he had been managing director of the Defendant for thirteen years and had formerly owned the Defendant.  He said that he was responsible for health and safety matters, was self-taught and had no qualifications.  He said he trained other members of staff.  When it came to discussing the accident, he described getting into the lorry, starting the engine and putting the vehicle in gear in order to see if the wheels would stop if the brakes were applied.  Defence counsel then began to ask Mr Skinner a number of questions that were designed to show that he, and not the Defendant, was responsible for the accident and that the Defendant would not have approved of what he did.

42.     Prior to him having been asked those questions, the Crown submitted that Mr Skinner ought to be cautioned on the footing that he was exposing himself to potential liability under Article 23 of the Law.  Article 23 provides:

"23 Offences by bodies corporate

(1) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, the person as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.         

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with its functions of management as if the member were a director of the body corporate."

43.     The Crown said that Mr Skinner was exposing himself to potential criminal liability under Article 23 by answering the questions that defence counsel was putting to him.

44.     Defence counsel objected to Mr Skinner being cautioned and said that it was unfair as it may prevent the defence from articulating the Defendant's defence to the charge, to the effect that Mr Skinner was on a frolic of his own and the Defendant not liable for his actions. 

45.     Mr Goncalves had already given evidence, prior to Mr Skinner, to the effect that the workshop brake test was organised by Mr Skinner, that Mr Skinner used the trolley jack to increase the height of the lorry, that Mr Skinner was responsible for alighting from the cab of the lorry without putting the handbrake on whilst leaving the vehicle with its engine running and in gear, and that Mr Skinner had then "unfortunately" removed the post lift on the front nearside which was acting as a chock. He also accepted when it was put to him that when the rear wheels of the lorry were lowered to the ground and it began to move that "Mr Skinner realised his mistake and tried to stop it".  He also accepted that Mr Skinner should have turned the engine off, put the handbrake on and kept the chock in place when alighting from the vehicle.

46.     So the Crown could argue with some justification that the defence case was already squarely in front of the Jurats as a consequence of the evidence given by Mr Goncalves.

47.     The defence also said that it was unfair for the Crown to suggest that its own witness should be cautioned, to which the Crown replied that its preference had been for Mr Skinner to be a defence witness.  However, whatever Mr Skinner's status, whether a Crown or as a defence witness, this issue was bound to arise.  In circumstances such as this where the Crown say, ostensibly in good faith, that the witness ought to be cautioned and point to statutory justification then, in my view, I had little option but to caution the witness.  This I did.  Mr Skinner answered a couple of additional questions and then suggested, having heard a submission made by defence counsel to this effect, that he wished to take legal advice before replying to further questions.

Issue 4 - Whether the witness, Mr Skinner, should have had the opportunity to take independent legal advice after he was cautioned

48.     There appears to be no obligation on the part of the Court to suggest to a witness who is cautioned in the witness box that he or she should have the opportunity of taking legal advice prior to answering further questions and no authority was put before me to that effect.  However, in circumstances where a witness asks for legal advice, then so long as such advice can be given without the trial being derailed or adjourned then (and again I was not furnished with any relevant authority) he or she should be entitled to take such advice.  In the case of the defendant or a defence witness, frequently such advice could be given by defence counsel.  However, in this case the interests of the Defendant and Mr Skinner were not at one.  It was in the interests of the Defendant that Mr Skinner answer all the questions asked of him but it was not necessarily in the interests of Mr Skinner personally that he reply to such questions.

49.     I directed that Mr Skinner, if he wished to do so, take independent legal advice overnight and the trial resume at 10am the following morning.  Defence counsel asked if there was any difficulty in a partner from his law firm unconnected to this trial giving such advice, and I ruled that there was no such difficulty - the Crown indicating it had no objection to this course of action too.

50.     Mr Skinner was able to take legal advice from Advocate Nicholls overnight.  He helpfully sent a letter to the Court by email the following morning, before the trial resumed, indicating that such advice had been given.  The letter said that although the privilege attaching to the advice given to Mr Skinner had not been waived, in the absence of written confirmation from the Crown that Mr Skinner would not be prosecuted, the safest course of action for him was not to answer any further questions.  When Mr Skinner resumed his evidence, he replied "No comment" to questions directly connected to the circumstances of the accident, but responded to other questions in the usual way. 

Issue 5 - the evidence of Mr Firmino

51.     Mr Firmino's evidence to some extent went beyond the contents of his witness statements.  This is unsurprising for three reasons.  First, his witness statements were so short.  Secondly, he had never examined the lorry or visited the workshop.  Thirdly, he had not been asked a number of rather obvious questions about the system of work that was adopted in this case, which he ought to have been asked.  Accordingly, his oral evidence went well beyond the contents of his report.  In those circumstances, defence counsel objected to the contents of his evidence insofar as it went beyond his report; reminded the Court that defence counsel had been happy for Mr Firmino's evidence to be read to the Jurats and now that he had given evidence outside the scope of his statements the defence had been prejudiced by its decision not to call expert evidence of its own, a decision which had been made having regard to the expert evidence as it stood prior to trial.  There was significant merit in defence counsel's submissions in this regard.  Accordingly, I directed the Jurats to ignore the evidence of Mr Firmino in so far as he suggested that it was unsafe to carry out the brake test with the engine running as that was not a matter which he dealt with in his various written statements.

Issue 6 - The application to adduce the evidence of Mr Lihou under the Criminal Justice (Evidence and Procedure) (Jersey) Law 2003 ("the 2003 Law")

52.     Mr Lihou did not attend trial.  The Court was furnished with written medical evidence and oral evidence from Natasha Blasco, a witness and victim advocate.  As to the former, the Court was supplied with a letter dated 5 January 2024 from Mr Lihou's GP indicating that Mr Lihou had attended upon his surgery "in distress" that day, noting that Mr Lihou was likely to be called as a witness in this case.  His doctor said that Mr Lihou had a considerable history of mental health disorders with a working diagnosis of "Aspergers / ADD / ADHD? / autism", and that the effect of being asked to appear in Court was causing him to be increasingly symptomatic.  He had been off work for the week and his doctor said that his mental health disorders "prevent him from giving evidence in Court, they are severely impacting him to the point he is not his usual self, and he would be therefore unable to give evidence".

53.     Ms Blasco gave evidence and informed the Court that Mr Lihou's GP had written a similar letter on 22 December 2023 in respect of Mr Lihou, absent the last paragraph indicating that he was unfit to attend Court.  She had been in contact with Mr Lihou throughout, i.e. for approximately a year, and he had always told her that he would find giving evidence stressful.  She noted that he still worked for the Defendant.  She said that she had tried to support Mr Lihou with an intermediary assessment.  She said that he had not been able to participate in the assessment with an intermediary.  He was not eating and, although she had spoken to him on telephone, he had refused to come to Court and was not at work.  None of her evidence was challenged by cross-examination. 

54.     On the face of it, the evidence of Mr Lihou was admissible under Article 65(2)(b) of the 2003 Law, namely his statement was admissible as evidence of any matter stated if oral evidence given by him would be admissible as evidence of that matter (which was not challenged), there was no doubt that it was him that made the statement, and that he was "unfit to be a witness because of his..... bodily or mental condition".

55.     I note from Archbold that this is a gateway to admissibility where the Court has no discretion (subject to what I say below), that the burden of proof is on the Crown to the criminal standard to prove that the conditions for admissibility are satisfied and there is no need to consider the factors set out under Article 62(2) prior to the Court holding that the evidence is admissible.  For the contrasting practice in relation to statements made under Article 67A, see Rodrigues v AG [2021] JRC 015 at paragraph 40.  In fact, in this case, the Crown did make submissions to me by reference to the factors listed in Article 64(2), taking each sub-paragraph in turn as follows:

(i)        The statement had considerable probative value - it set out the method of work and Mr Lihou's role in the circumstances that led to the accident;

(ii)       Other evidence of a similar nature had been given by Mr Goncalves and Mr Skinner - both spoke to the method of work adopted;

(iii)      The statement of Mr Lihou was important in the context of the case as a whole;

(iv)     The statement was made in standard form to the police, signed by the witness and subject to an Article 9 declaration;

(v)      There was no evidence that Mr Lihou's statement was unreliable, and evidence along the same lines had been given by Mr Goncalves - which was largely unchallenged by the defence;

(vi)     The evidence of the making of the statement appeared to be reliable;

(vii)     Oral evidence could not be given by Mr Lihou as he was unfit to attend Court;

(viii)    There was no direct challenge to the evidence he was likely to give; and

(ix)      There was no likelihood of prejudice, as the contents of the statement were largely unchallenged.

56.     The defence objected to the admissibility of the evidence of Mr Lihou.  He was a fully bound witness and required to give evidence.  It was argued that the Crown had not kept the defence informed from time to time about the fact that Mr Lihou was likely to be unable to attend trial or at least that there was a question mark over his attendance.  The defence objected to the statement of evidence being admitted as hearsay evidence and said that it was particularly unfair in the context of Mr Skinner's inability to give a full account to the Jurats owing to the fact that he had been cautioned and then had exercised his right to make no comment.  The defence said that the evidence of Mr Lihou could not be tested by cross-examination.

57.     The Crown replied that it had hoped that Mr Lihou would attend Court and had hoped that he would cooperate with the special measures designed to assist him in giving evidence.  Indeed, the Crown had said at the pre-trial directions hearing on 1 November 2023 that Mr Lihou "may be required to give evidence via video link or with the assistance of an intermediary" - so the defence were notified of potential difficulties with him.  The Crown also suggested that the defence case statement did not take issue with any of the matters contained in Mr Lihou's statement, but that is perhaps unsurprising as such documents frequently outline the defence case and do not always deal with the granular detail of prosecution witness evidence.

58.     Having considered both the admissibility provisions referred to above, and also the Court's power to exclude evidence under Article 76 of the 2003 Law, I was satisfied that the evidence of Mr Lihou was admissible and I directed the Jurats in respect of its limitations prior to them retiring to consider their verdicts.  Those directions to the Jurats were agreed by counsel.

Issue 7 - Defence application to stay the proceedings as an abuse of process

59.     At the end of the Crown's case, the defence made an application to stay the proceedings as an abuse of process.

60.     Such an application had not been foreshadowed.  Generally, applications for a stay should be made on notice to the Crown (this was not) and as early in the proceedings as practicable.  Archbold says at 4/101 that:

"when an application for a stay should be heard and ruled upon is a matter for the trial judge; however, ordinarily this ought to be at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the issues can better be determined at a later stage...."

61.     I could perhaps in the exercise of my discretion have declined to hear the defence application to stay the proceeding so late in the day, but the defence said that many of the grounds upon which the abuse of process claim was mounted were matters that arose immediately before or during the course of the trial.

62.     The burden of proof of establishing that proceedings amount to an abuse of process is on the defendant and the standard of proof is the balance of probabilities.

63.     The defence application to stay the proceedings on the grounds of abuse of process was based on the following principal submissions:

(i)        Mr Skinner's change in status, as summarised above, and the fact (it was argued) that he was cautioned in the witness box at the behest of the Crown, and then required to take legal advice meant that key questions ultimately went unanswered when posed by defence counsel.  It was said the consequence of this was that Mr Skinner's evidence was "guillotined" by the caution and that there had been a change of stance in that at the directions hearing the Crown had said they were not going to prosecute Mr Skinner; but at trial, they said it was possible that he would be prosecuted depending upon the evidence which he gave.  This was described as an "unfair manipulation" of the system in circumstances where the Crown knew that Mr Skinner's evidence was going to exonerate the Defendant.

(ii)       The Crown's expert evidence had "evolved".  The defence accepted that this can legitimately occur in a case but should not have been permitted in circumstances where the defence had deliberately taken the step not to incur the costs of instructing an expert because Mr Firmino's written evidence was short and it was not necessary for the defence to challenge owing to its contents.  Defence counsel queried the expertise of Mr Firmino.  Defence counsel said that one aspect of Mr Firmino's evidence not contained in his witness statements, namely that axle stands were always needed for operations involving the elevation of a vehicle with the exception of a roadside tyre change was a matter that he wished to challenge by way of expert evidence.

64.     As the Crown had been taken by surprise by the application they asked the Court for leave to address the matters raised on the afternoon of the third day of the trial (the Court was in any event engaged on another matter on the third morning and that was when the case was due to resume).  The Crown then provided written submissions in response noting, as both parties agreed, that the Court had the power to stay proceedings when:

(i)        it would be impossible to give the Defendant a fair trial; and

(ii)       a stay is necessary to protect the integrity of the criminal justice system.

65.     The Crown's written contentions began by submitting that the defence advanced on behalf of the Defendant provided it no defence in law.  This was a matter that the Crown invited me to rule on at the outset of the case.  I declined to do so as the matter had not been foreshadowed by any written application to this effect and in any event, although perhaps out of an abundance of caution, I ultimately (see below) ruled that the Crown were incorrect in this submission.

66.     In its written argument, the Crown renewed that application submitting that it was essential for me now to rule that there was no defence in law to the allegation made.  I declined to give such a ruling.

67.     As to the merits of the defence application, the Crown repeated that Mr Skinner's potential liability for the commission of an offence was apparent from the facts as disclosed by the evidence, the fact that the Defendant chose to appoint him as the individual attending court and giving instructions on its behalf and that it must flow from this that Mr Skinner's account was consistent with that of the Defendant.  I am not sure this conclusion necessarily follows but nonetheless the Crown submitted that it did.

68.     The Crown denied that there was any manipulation of the process by its late decision (which the Court rejected in any event) not to call Mr Skinner as a prosecution witness.  In respect of the fact that Mr Skinner was cautioned, the Crown referred to an exchange of correspondence in August 2023 in which the defence wrote to the Crown to the effect that Mr Skinner was one of the Crown's main witnesses but was also "likely to be one of our main witnesses" and the defence needed to speak with him for the purposes of preparing the defence case.  The Crown replied by saying they had no objection but attached the Attorney General's November 2019 guidance in relation to contact with prosecution witnesses which said that should such witnesses wish to speak to the defence then they "ought to seek independent legal advice".  The Crown were entitled to say from the outset that they suggested that Mr Skinner should take independent legal advice but in my judgment this did not take the Crown a great deal further because his need to take legal advice would still have arisen if Mr Skinner was cautioned whilst giving evidence and there was no suggestion in the correspondence that this might occur, which again, perhaps, is unsurprising as such matters generally only arise in the course of evidence.

69.     The Crown said in their written response that it was "inevitable" that Mr Skinner would need to be cautioned as it was "obvious" that his evidence would support the defence case.  This argument was difficult to accept as the suggestion that Mr Skinner might be cautioned was never raised in the argument that took place on the first day of the trial as to his status, i.e., as a prosecution or defence witness.  Had the Crown foresaw as a certainty that Mr Skinner was likely to be cautioned when he gave evidence - which would inevitably lead to an adjournment while he took legal advice - then the Crown should have informed the Court and the defence at the outset.  Indeed, the Crown should have indicated that that was the position when they wrote to the defence on the Wednesday before the trial so as to give Mr Skinner a chance to take legal advice at that time and consider how he would react if he was cautioned (which the Crown said was inevitable) during his evidence.

70.     The Crown's point is different to the one that I made during the trial, namely that the issue of cautioning Mr Skinner would have arisen whether he was called as a prosecution witness or a defence witness.  That observation was made in the context of the evidence that Mr Skinner gave and the questions that he was being asked by defence counsel.  He was not cautioned at the outset of his evidence, but only in relation to questions designed to show that he was exclusively responsible for the accident.  The Crown said that "there is no obligation on the prosecution to provide immunity to individuals who are not prosecuted but may have relevant evidence to give".  While that may be right, one would have expected a decision as to whether or not to charge Mr Skinner, bearing in mind the evidence in this case was in a narrow compass, ought to have been made a long time before trial.

71.     The Crown rejected the defence suggestion that the prosecution had changed its case, as revealed (the defence said) by the fact that much of Mr Firmino's expert evidence (for example in relation to the on the road brake test) was irrelevant.  The Crown said that Mr Firmino's report "however concise" made it clear that in his opinion when work was being undertaken upon a vehicle where two wheels were raised from the ground, the vehicle ought to be supported by at least two axle stands as there was a risk it might slip off a trolley jack.  The Crown say it was not its fault that the Defendant chose not to instruct its own expert and the defence were always at liberty to do so.

72.     The defence reply to this submission was that they had no issue with the evidence of Mr Firmino as it stood prior to trial - although I am not sure that is entirely accurate as even the small amount of relevant opinion evidence that was contained in his brief expert report was challenged to some extent.

73.     In my judgment, it was unfortunate that the issues raised in respect of Mr Skinner's status were, as observed above, brought to the defence's attention so shortly before trial.  It is difficult to accept that the Crown realised at that time that it was inevitable that Mr Skinner would need to be cautioned during his evidence and the Crown had foreseen that having been cautioned Mr Skinner would seek an adjournment for the purpose of taking legal advice.  The defence were right to argue that the Crown did not seem to fully understand that the case was exclusively about a workshop brake test and that some of the expert evidence which the Crown proposed to call was irrelevant to that issue.  However, the Crown were entitled to say that the evidence of Mr Firmino in any event did at least in part address the key issue in the case.  I have already made observations in relation to the deficiencies in the scope of Mr Firmino's evidence which the Crown failed to pick up prior to trial and then attempted to remedy too late.

74.     However, none of these matters come near to establishing that it was impossible to give the Defendant a fair trial or that it was necessary to protect the integrity of the criminal justice system by granting a stay.

75.     This was a relatively simple case.  The Court had before it the evidence that the parties chose to call.  Ultimately no unfairness arose as a consequence of the late decisions made by the Crown and the deficiencies in the expert evidence called on its behalf.  Accordingly I rejected the defence application to stay the proceedings on the grounds of abuse of process.

Issue 8 - submission of no case to answer

76.     The defence made a submission of no case to answer.  After the application to stay the proceedings on the grounds that abuse of process had been refused, it was submitted by the defence that there was, in any event, no case to answer.  In addition to the matters raised on the submission that I should stay the proceedings on the grounds of abuse of process, the defence case was (in short) that Mr Skinner - on the evidence - was exclusively responsible for this accident; this was supported by the other evidence as to fact; the indictment was insufficiently particularised and to the extent that it was particularised, the Crown had failed to adduce sufficient evidence in support of any of the three particulars.  The Crown replied that Mr Skinner's conduct did not absolve the Defendant from responsibility for the accident as a matter of law, that the Court had received extensive evidence as to the system of work used, that there was no dispute as to the method of work used and it was clear from the evidence of Mr Firmino that the use of a trolley jack was insufficient for this process to be carried out safely.

77.     The prosecution's case, as summarised at the outset of this judgment, had not been undermined by the evidence as it unfolded.  In the circumstances there was clearly a case to answer and I declined to withdraw the case from the Jurats.

Issue 9 - the content of the legal directions given to the Jurats

78.     In the usual way, I invited counsel to make submissions in relation to the legal directions I would give in open court to the Jurats prior to their retirement to consider their verdict.

79.     At the plea and directions on 1 November 2023, the Crown stated that there were no legal issues which needed to be dealt with prior to trial or indeed at all.  Accordingly, both the Court and the defence were surprised to receive on the eve of the second day of a trial listed to last two days, a ten page skeleton argument referring to various provisions of English legislation and approximately a dozen authorities raising various issues in respect to the elements of the alleged offence and the defence, of which the Crown had been aware since receipt of the defence case statement on 10 November 2023.

80.     Such matters should be drawn to the Court's attention no later than the plea and directions hearing and not right at the end of a trial as they have every prospect of de-railing the trial, or at the very least causing delay.

81.     Notwithstanding the lengths of the Crown's submissions, they boiled down to three contentions.  First, the submission that the particulars of a health and safety prosecution under the Law do not need to be individually proved as they are not ingredients of the offence.

82.     In this case the statement of offence read:

"On 13 October 2022, at a property known as Bradford Farm, La Rue des Vignes, St Peter Skinner Skips Limited acted in contravention of Article 21(1)(a) of the Health and Safety at Work (Jersey) Law 1989, as amended, in that, being an employer, you failed to discharge the duty to which you were subject by virtue of Article 3(1) of the said Law, which requires you to ensure, so far as is reasonably practicable, the health and safety at work of all your employees."

83.     The particulars were three in number and read as follows:

"You failed to comply with Article 3(2)(aa), (a) and (c) of the Health and Safety at Work (Jersey) Law 1989 in that you failed:

(i) to ensure, so far as reasonably practicable, that persons in your employment, including Paul Skinner, were not exposed to risks to their safety in that you failed to provide and maintain a safe system of work for the testing of the brakes on a HIAB truck. As a result, the said truck drove out of the workshop and into the yard without a driver in control and thereby exposed Mr Skinner to risks to his health and safety.

(ii) to identify and assess the risks to health and safety to which your employees were exposed at work, in that you failed to conduct a risk assessment in respect of the risks to which employees were exposed whilst carrying out brake testing of vehicles in the workshop.

(iii) to provide such training and supervision as is necessary to ensure, so far as reasonably practicable, the health and safety of your employees, including Paul Skinner, in that you failed to provide such training to ensure your employees were not placed at risk whilst conducting motor vehicle repairs, or supervision of Paul Skinner to ensure that he ran the workshop in such a way as to manage the health and safety risks posed by the working activities."

84.     The Crown said the particulars of the failures which led to the breach of duty are not required to be pleaded or proved.  In R v Chargot Limited [2009] 1 WLR, Lord Brown said that "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" (paragraph 44).

85.     Nonetheless, the Crown may rely on evidence of particular failures and in those circumstances may plead them.  Lord Hope said at paragraph 25:

" ... where defects in the employer's plant or systems of work giving rise to those risks have been identified the case for the prosecution may well be strengthened by the leading of that evidence. Even in cases where injury or death has resulted, investigations following the accident may not have disclosed the exact cause of it. Proof of its cause will focus attention on the particular aspect of the employer's undertaking that gave rise to the risk. If the prosecution chooses to take this course, fair notice of its case must be given. Details must then be given in the particulars."

86.     However, such pleaded failures do not become elements of the offence and, as Lord Hope said at paragraph 26: 

"Fairness may, as I have said, require giving notice of such allegations.  But they are not ingredients of the offence."

87.     The defence submitted that this was incorrect and that the Crown needed to prove all of the particulars set out above.  I disagree.  The Crown was correct, and I note that Commissioner Sir Michael Birt gave a direction to like effect in AG v Rok Homes Limited on 12 October 2022 where he said to the Jurats at paragraph 8 of his directions:

"The prosecution say that ROK failed to comply with its obligations under Regulation 21 in three respects.  These are the three respects set out at (a), (b) and (c) of the charge.  If you are sure that ROK failed in any of these three respects, you should find it guilty of the charge; you do not have to find that it failed in all three respects in order to find it guilty.  However, you must consider each of the three respects separately, and decide in relation to each one whether or not you are sure that ROK has contravened Regulation 21 as alleged by the prosecution."

88.     In this case, I directed the Jurats in the following terms:

"11.....The indictment gives three particulars of a failure to discharge this duty.

12.      The Crown say that the Defendant failed to discharge its duty in the three respects particularised.  You should consider each of the three particulars separately and decide in relation to each one whether or not you are sure that the Defendant has contravened Article 21 as alleged.  If you are sure that the Defendant failed to discharge its duty by reason of any one of these three matters or for any other reason upon which you both agree, you will go on to consider the second issue.  If you are not sure then the Defendant is not guilty."

89.     In fact, when the Jurats returned their verdict, they indicated (as recorded in the brief judgment I gave to this effect) they were satisfied that the Crown had proved its case in relation to all three particulars. 

90.     The second argument which the Crown advanced is that it was for the defence to prove that it was not reasonably practicable to take steps to do more than was in fact done to satisfy the duty placed upon it.  The indictment in this case referred to the duty under Article 3(1) of the Law.  Article 3 is entitled "General duties of employers to their employees".  Article 3(1) says "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all the employers' employees".  Apparently Article 3 exactly mirrors Section 2 of the Health and Safety at Work Act 1974 ("the 1974 Act") which is in the same terms.  The Crown went on to say that this duty under the 1974 Act was introduced as part of a new statutory regime which aimed to secure the health, safety and wellbeing of persons at work - which is mirrored in the preamble to the Jersey Law.

91.     However, Section 40 of the 1974 Act provides:

"Onus of proving limits of what is practicable etc.

In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."

92.     The consequence is that as a matter of English law the employer will be in breach of its duty unless it can show that it was not reasonably practicable for it to do more than was done to satisfy it.  This is a duty imposed to the civil standard, i.e. the employer must prove that it was more likely than not that it had taken reasonably practicable steps. 

93.     The Crown accepted that no equivalent of Section 40 was found in the Law and that there was no explicit provision placing the legal burden on the Defendant in this case in respect of reasonable practicability, but submitted that by virtue of customary law principles a reverse burden (i.e. a burden that the defence must discharge) can be identified as a matter of statutory construction.  In that regard, reference was made to the decision of the House of Lords in R v Hunt [1987] AC 352, where Lord Griffiths recognised at paragraph 374 that a statute may on its true construction place a burden of proof on a defendant, although it does not do so expressly.  He went on to say:

"The real difficulty in these cases lies in determining upon whom Parliament intended to place the burden of proof when the statute has not expressly so provided."

94.     Lord Griffiths went on to say that in a previous case decided under the Factories Act 1961, the House of Lords divided three to two on the construction of a section in similar, although not identical words, to Article 3 of the Law with Lord Read and Lord Wilberforce holding that the section required the plaintiff or prosecution to prove that it was reasonably practicable to make the working place safe, but the majority, namely Lord Guest, Lord Upjohn and Lord Pearson, held that if a plaintiff or prosecution proved that the working place was not safe, it was for the defendant to excuse himself by proving that it was not reasonably practicable to make it safe.  Lord Griffiths said:

"However, their Lordships were in agreement that if the linguistic construction of the statute did not clearly indicate upon whom the burden should lie the Court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden."

95.     There is some force in the Crown's argument that the burden of proving reasonable practicability shifts to the defence once the Crown has shown that a working place was not safe.  I was not furnished, which is perhaps unsurprising owing to the lateness during the trial at which the issue was raised, with the projet de loi / report accompanying the Law when it was adopted by the States and do not know why the States were not invited to enact legislation which contained the equivalent to Section 40 of the 1974 Act. 

96.     There is no suggestion that Commissioner Birt needed to deal with legal argument on this issue in AG v Rok Homes Limited and the provision within the Law that was engaged in the case was a different one, albeit one that did, in the context of construction work, require the "relevant contractor" to "so far as reasonably practicable" ensure that services at the construction site were identified and that the condition of and risk posed by such services were assessed in accordance with the relevant regulation. 

97.     However, the Commissioner did not suggest in his directions to the Jurats that it was for the employer to show that it had taken reasonable steps, notwithstanding the wording of the relevant provision. 

98.     My decision on this issue should not be taken as a precedent owing to the limited time that I had to consider the matter, but the absence of an equivalent to Section 40 in the Law and the general principle that the Court should be slow to interpret statutes as placing a burden of proof upon a defendant in a criminal trial, led me to conclude that the burden of proof remained on the Crown throughout and accordingly it was for the Crown to prove that the Defendant had failed to discharge its duty to ensure so far as reasonably practicable the health, safety and welfare at work of its employees.  I directed the Jurats accordingly.

99.     The third submission made by the Crown was that the defence advanced by the Defendant was unavailable to it.  Article 22 of the Law provides:

"Offences due to fault of other person

(1)           A person charged with an offence under any of the relevant statutory provisions who proves to the satisfaction of the court that he had used all due diligence to enforce the execution of the relevant statutory provisions and that the offence was due to an act or default of some other person who committed it without his consent, connivance or wilful default, shall be acquitted of the offence.

(2)           Where paragraph (1) applies the person to whose act or default the offence was attributable shall be guilty of the offence and that person may be charged with and convicted of the offence by virtue of this paragraph."

100.   The Crown's case was that Mr Skinner, who was on his own evidence managing director of the Defendant and the man with primary responsibility for health and safety matters, could not be "some other person".  The Crown submitted, with some force, that a person of Mr Skinner's seniority with his role in the Defendant could not be "some other person" for the purposes of Article 22 of the Law.  Reference was made to a similar provision in the Trade Descriptions Act 1968 (Section 24) which was considered by the House of Lords in Tesco Supermarkets v Nattrass [1972] AC 153 where Lord Diplock said that Section 20 of the Trade Descriptions Act drew a distinction between persons who are "director, manager, secretary or other similar officer of a body corporate" and other persons who are merely its servants or agents. 

101.   Section 20 of the Trade Descriptions Act was in very similar terms to Article 23 of the Law, which says:

"Offences by bodies corporate

(1)           Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2)           Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connexion with its functions of management as if he were a director of the body corporate."

102.   The Crown made the point that if Article 23 provides that a director / manager etc may be guilty of a relevant offence under the Law alongside the body corporate then such a person simply cannot be "some other person" for the purposes of Article 22.  The Article 22 offence really only assisted a corporate defendant in the case of the acts of junior employees.  The Crown argued that a company cannot avoid liability where a failure arises through the default of an employee who is at the same time a directing mind of the company.  The Crown's submission had merit and, again, my decision should not be regarded as authority in future cases where a similar issue arises. 

103.   The defence resisted the Crown's submission and said that although Mr Skinner was a director, he also worked in other capacities and on the day in question he was on the workshop floor working alongside more junior employees. 

104.   In the circumstances, and as this was a matter raised late in the day by the Crown, it did not seem to me to be appropriate to withdraw from the Jurats the only defence available to the Defendant and I directed the Jurats accordingly:

"....the Defendant says that the offence in this case was the fault of another person and not the Defendant.  The other person is Mr Skinner.  If the Defendant has proved that it is more likely than not that "[the Defendant] used all due diligence to enforce the execution of the relevant statutory provisions and that the offence was due to an act or default of some other person who committed it without [the Defendant's] consent, connivance or wilful default", then the Defendant is entitled to be acquitted of an offence.  The Crown say that Mr Skinner as the Managing Director of the Defendant cannot in law be treated as "some other person" owing to his close connection with the Defendant as one of or its sole directing minds.  If you are sure that this is the case and that Mr Skinner is so closely connected to the Defendant that he cannot be "some other person" then I direct you that you need not consider this defence any further and must find the Defendant guilty.  If you think that Mr Skinner is or may be "some other person" and that the Defence has proved that it is more likely than not that the offence was due to his act committed without the Defendant's consent, connivance or wilful default, then you will find the Defendant not guilty.  If the Defendant fails to persuade you of this, then you will find the Defendant guilty."

105.   It can be seen that I left the defence under Article 22 open to the Jurats unless they were sure that Mr Skinner was not "some other person" for the purposes of Article 22.  In fact, as communicated to the parties when the verdict was returned, the Jurats were prepared to accept that Mr Skinner was or may have been "some other person" for the purposes of Article 22, but rejected the defence advanced that the Defendant had used all due diligence to enforce the execution of the relevant statutory provisions and that the offence was due to an act or default of Mr Skinner who committed it without the Defendant's consent, connivance or wilful default.  It was not disputed that the burden of proof under Article 22 rested upon the Defendant to the civil standard.

Issue 10 - the defence application to read Mr Skinner's letter to Miss Blasco

106.   After the evidence had closed, the defence applied to read to the Jurats a letter that Mr Skinner had sent to Miss Blasco on 28 November 2023 in which he had said that he did not want to give evidence as a prosecution witness, had never wanted to do so and added that he was concerned about his own position and did not "want to be at the forefront of a case which simply highlights mistakes which I alone made at the time".  He went on to say that the Defendant did not do anything wrong. 

107.   The Crown said that the evidence was now closed (which it was) and the letter in any event was inadmissible hearsay and would not have been admissible as a previous inconsistent statement had Mr Skinner been asked about it.  The letter was consistent with the defence case and the evidence that Mr Goncalves gave when he was cross-examined.  There was no dispute that Mr Skinner's actions had ended up causing an accident - the issue was whether or not the Defendant was responsible in fact and in law for his actions.  I agreed that it was not appropriate for this evidence to be read to the Jurats, essentially for the reasons given by the Crown.

Authorities

Health and Safety at Work (Jersey) Law 1989. 

Re Kenneth Russell Jones [1995] 1 Cr AR 538. 

AG v T [2014] JRC 039. 

Fernandes v AG [2021] JCA 164. 

AG v Knowles [2002] JLR Note 38. 

Archbold Criminal Pleading, Evidence and Practice

Rodrigues v AG [2021] JRC 015. 

R v Chargot Limited [2009] 1 WLR 1

Health and Safety at Work Act 1974. 

R v Hunt [1987] AC 352. 

Tesco Supermarkets v Nattrass [1972] AC 153.