“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
“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.”
“Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of – (a) an employee of his, or (b) (irrelevant).”
“At the start of their contract, HN (Hyde) sought to significantly improve the level of repair on the Market Estate. Management meetings were held at senior level between HN and IBS (i.e., Islington) to address the problems. A major initiative commenced with experienced HN and IBS housing staff visiting the Market Estate together on the26 July 2000 . They drew up extensive schedules of repair, floor by floor, on each of the three housing blocks on the estate, including Southdown House. IBS began actioning the repairs. However, the need to rehang the 2nd floor communal door at Southdown House had not been spotted on this floor-by-floor survey (even though a different staff member had noted it needed rehanging on 19 June). Anybody could make a request to LBI Housing for repair work to be carried out (e.g. Housing Officers, caretakers, tenants etc,) and procedures existed for the repair to be raised and prioritised for action. A formal repair order for the vandalised communal door, first spotted on 19 June, was neither raised at that time (by LBI Housing) nor later (by HN) following the survey on 26 July. This was one repair among many that the repairs procedure did not capture. Although management responsibility for repairs at Southdown House had changed at the time of the accident on 8 September, most of the staff involved in raising repairs or actioning them were the same individuals. There does not appear to have been a loss of continuity of knowledge or expertise during the changeover. The new management (Hyde) appear to have brought considerable extra urgency and commitment to dealing with the problems of housing repairs on this estate. At the time of the accident they had in place reasonably practicable procedures for raising and checking on housing repairs, and were seen to be making progress.”
“Now the door in question was a large steel heavy door and it was in a communal area where children were likely to pass. How precisely it came to be not hanging as it should have been is not evident from the available information, but what is evident is that it was not hanging correctly as earlier as the 19th June, but I’m not saying it was removed on that date, but it was known to be in its present state on that date and described as a priority repair. Despite the floor-by-floor examination on the 26th July it seems the door was not noticed, how that happened I think must remain a matter of concern. But the door it seems was in different positions before the 8th September, there were people around, it was a very visible danger to those in the premises, but how it precisely got into again the position it was in at the time of the accident there is I’m afraid no evidence, no way that I can answer that point.”
“I would expect a programme for building maintenance to include reasonable procedures for identifying and recording potentially dangerous defects in and around properties, procedures to allocate jobs, and any follow-up action. Whereas it would not be reasonable to expect all defects to be repaired simultaneously, it would be reasonable to expect the system to be able to identify priorities for attention first. My investigation therefore sought to establish the existence of recognised building maintenance programmes that: (a) were followed, and (b) were appropriate to the housing stock involved within Islington’s’ Rosetower and Copenhagen Housing Area (approx. 6500 homes) including Southdown House on the Market Estate. During the investigation I obtained details of the maintenance and repairs procedures operated by both the Borough and Hyde Northside. I also examined maintenance records for Southdown House. I was presented with a systematic approach and supporting records to show what had been done. I also met some of the housing staff and was able to confirm their competence in that they had considerable experience in dealing with building maintenance in local authority housing. There was also a frank recognition of the high levels of disrepair and repeat vandalism occurring on the Market Estate, and initiatives underway to tackle these problems. I also liaised with local police from the Islington Police Station during the investigation. They tried to determine if there was any criminal or malicious intent in moving the door, which had already been taken off its hinges, possibly through vandalism. It was found blocking the stairs at the first floor on6 September 2000 . Neither I nor the police were able to discover who put the door in that position, nor when or who subsequently moved it so that it was resting upright in the position from which it fell on8 September 2000 . I can therefore not even confirm if the act of placing the door was a work activity to which the above Health and Safety law applies. Please be assured that a decision on what action, if any, HSE takes after an investigation is not one taken lightly when there has been a fatality. We have procedures to follow and these are set out in the Health and Safety Commission’s published policy on the enforcement of Health and Safety law (copy enclosed). I can confirm that these procedures have been followed”
“Mr Turnill … set out his role within the HSE and what he had undertaken in relation to this case. He said that the PP looks at all of the HSE inspector decisions not to prosecute and assess whether or not the decision is correct, the right charges are being laid, and whether any further inquiries are necessary. He said that his role was like that of the CPS (where in fact he used to work). He said that his role was as a prosecutor and ‘he wanted to prosecute’ if at all possible. He wasn’t there to find reasons not to prosecute. As a review lawyer, he was there to judge from an evidential point of view the strength of the case and the prospects for a successful prosecution.”
“He said that he was given all the papers that the HSE had on the case – and looked at what further information could be obtained. He then requested the inquest transcript – and one of the reasons for the delay was the length of time it took the coroner to provide a transcript. He also sought statements taken by the council as part of it’s internal investigation. The council however was only willing to provide the statements if the contents of the statements was not revealed to anyone outside the HSE, and that if the HSE wanted to use the statements as part of any legal proceedings, they would have to take fresh statements. He said that he also asked the Centre for Corporate Accountability about whether they could provide any further materials. He said that he reviewed the all the information, and then applied the Crown Prosecution Service’s two-stage test. He explained the evidential and public interest tests. He said that in this case the evidential test was not satisfied. There was not enough evidence to secure a conviction.”
“Q. Should the council not have a system in place to ensure that doors were not on a dangerous place? A. It is the evidence that there was a system in place the evidence is that the doors were kept in a safe place – and I have no evidence to the contrary. In addition there is evidence that doors were removed by the caretakers and taken out of the estate. There was a system in place for repairers and persons walking along the estate and checking for hazards monitored it. Q. The caretaker reported that the door was off its hinges and on the landing and in an unsafe place; A. An inspection of the estate was taken and no door was found. Q. But surely if a door was reported, and then not found not to be present questions would need to be answered. Q. An employee reported that this door should be treated as an extreme urgency and he was ignored! A. He did not report it as an urgency because of safety matter but urgency because it was a security door; the concerns were about security.”
“5.1 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be and how that is likely to affect the prosecution case. 5.2 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. 5.3 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable . . .”
“... it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute: (1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below ££100 ); or (2) because the Director of Public Prosecutions failed to act in accordance with her own settled policy as set out in the Code; or (3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”
“... But [as counsel for the Director] properly agreed, none of the statements in earlier authorities can have been intended to exclude from this Court’s consideration other fundamental aspects of the judicial review jurisdiction, for instance, as at least potentially relevant to our present case: (1) has the decision-maker properly understood and applied the law? (2) has he explained the reasons for his conclusions in terms that the court understand and act upon? (iii) has he taken into account an irrelevant matter or is there a danger that he may have done so?”
“Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v Director of Public Prosecutions, Ex p C[1995] 1 Cr App R 136 . But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the Crown Prosecution Service, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The Director and his officials (and senior Treasury counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”
“In our judgment, the ingredients of the offence are that the accused is (1) an employer (2) who so conducts his undertaking (3) as to expose to risk of health or safety (4) a person not employed by him (5) who may be affected by such conduct of the accused’s undertaking. Where injury in fact results, as in this case, the position can be more shortly stated. (1) and (2) are the same (3) as to injure (4) a person not employed by him.”