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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dennis, R (on the application of) v DPP [2006] EWHC 3211 (Admin) (29 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3211.html Cite as: [2006] EWHC 3211 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/12/2006

Lord Justice Waller :

1. This is an application for judicial review by the claimant Mr Peter Dennis in respect of the decision of the Crown Prosecution Service Gwent Area, contained in a letter dated the 17^th March 2006, not to bring prosecutions for gross negligence manslaughter arising out of the death of the claimant's son, Daniel Dennis, in an industrial accident on the 8^th April 2003.
2. Daniel Dennis was 17 years of age when, on the 1^st April 2003, he started work as a labourer with Roy Clarke, who traded under the name of North Eastern Roofing.  Work was being carried out on the refurbishment of buildings at a retail park in Cwmbran, Gwent, South Wales.  The main contractor was Midas Construction Limited, which had subcontracted steel erection work to Hayes Engineering Limited, which in turn had subcontracted cladding work to Mr Clarke trading as North Eastern Roofing. North Eastern Roofing commenced work on the site on the 26^th February 2003.  Daniel Dennis was in his second week of working for North Eastern Roofing when he fell through a roof light to his death.
3. On the site there was a row of metal clad retail units including units occupied by B&Q and Matalan.  Two new units were being erected alongside the Matalan unit.  The work of North Eastern Roofing involved the renewal of side cladding to the existing units and the installation of roof cladding on the new units.  By the time Daniel Dennis started work on the 1^st April 2003 the roof cladding on the new units had been substantially completed.  In his first week of work his work involved side cladding to the B&Q unit.  In his second week, work commenced on the side cladding on the Matalan units.  For this purpose, a mechanical lift known as a scissors lift or cherry picker was used.  However this could not be used at one point because of ground excavation and at that point a scaffolding tower had been erected to eaves level, in order to allow the side cladding to be fitted.  The tower had three levels and had ladders leading from one level to another.  If one stood on the top level the roof was at about chest height.  Some materials had been stored on the Matalan roof and, it would seem, on the new roof for safe keeping.
4. At the time of the accident Jason Ryan, Caine Hayes and Daniel Dennis were engaged in cladding the side of the building and were working on the first level of the scaffolding tower.  Jason Ryan needed to cut some wood batons and Caine Hayes climbed down to fetch a saw.  Daniel Dennis said to Jason Ryan that he would go up onto the roof to look for a shorter piece of timber.  Jason Ryan (according to his statement) said that he replied not to bother as Caine Hayes had gone for a saw but Daniel Dennis continued.  Shortly after that he fell to his death through one of the skylights situated towards the centre of the Matalan roof.
5. The claimant maintains that this was his son's first job working at heights or on roofs, that he had no experience of so doing and had never received any training.  He maintains that Roy Clarke, as Daniel Dennis' employer, had, as part of Daniel Dennis' work during the period prior to the accident, instructed Daniel Dennis to go onto the roof or roofs to work and/or tidy up without any training or instruction as to the dangers of so doing, and indeed maintains that, far from instructing Daniel to go onto the roof while untrained, should have instructed him not to go onto the roof at all, or at the very least given him firm directions as to the danger of roof lights. He is critical of the fact that no training, relevant to working at heights or on roofs or round roof lights, was provided, no safety equipment was provided, nor were there any safety measures in place to restrict access to the roof or to mark off particular dangerous areas of the roof. It is said that no steps had been taken to comply with statutory obligations including those relating to designated safe walkways, fencing off of vulnerable points and the provision of suitable safety equipment.
6. On the 15^th March 2005 an inquest was held before the Coroner for Gwent and a jury.  The inquest heard evidence from the claimant, Mr Clarke, Mr Ryan, Mr Hayes, a pathologist and Mr Baker of the Health and Safety Executive (HSE).  The Coroner had not requested the attendance of any employee or director of Hayes Engineering Limited or Midas Limited at the inquest.  The Coroner permitted the jury to consider a verdict of unlawful killing on the basis of gross negligence manslaughter.  The Coroner directed the jury that there was sufficient evidence to conclude that Mr Clarke owed Daniel Dennis a duty of care.  The jury were directed as to the law on the basis of R v Adomako [1995] 1 AC 171.  They were directed that their verdict could not identify any individuals having criminal or civil responsibility and that the criminal standard of proof was to be applied in considering whether the death was an unlawful killing.  The jury returned a unanimous verdict of unlawful killing.
7. In August 2004 the HSE took a decision to prosecute Midas Construction Limited, Hayes Engineering Services Limited and North East Roofing for offences under the Health and Safety at Work Act 1974.  These prosecutions have been stayed pending the outcome of this application for judicial review.
8. Even before the inquest solicitors acting for the family of Daniel Dennis had raised with the defendant the possibility of criminal charges arising out of his death.  On the 6^th April 2005, following the verdict of the Coroner's jury, the claimant's solicitors made detailed submissions to the defendant to the effect that there was an abundance of evidence to support manslaughter charges against Mr Clarke.  On the 23^rd August 2005 Mr Ian Griffiths, a solicitor in the Crown Prosecution Service, wrote to the claimant's solicitors stating that the case failed to satisfy the evidential test of the Code for Crown Prosecutors.  Mr Griffiths stated that he was satisfied that the proposed defendants owed a duty of care to the deceased and were in varying degrees in breach of that duty. However, he could not be satisfied that the degree of negligence displayed was so severe that it would amount to criminal negligence.  On that basis, he had advised the police that there was no realistic prospect of a successful conviction and he had not gone on to consider the public interest test under the applicable Code.
9. On the 19^th September 2005 solicitors for the claimant notified the defendant of their intention to seek judicial review of its decision not to prosecute.  However, they agreed not to issue proceedings pending the defendant seeking further advice.  Following further correspondence between solicitors for the claimant and the defendant, on the 6^th March 2006 the defendant wrote informing the claimant's solicitors that no manslaughter charges could be brought against North Eastern Roofing because it was not incorporated at the time of the accident, and that so far as Midas Construction Ltd and Hayes Engineering and Hayes Cladding were concerned, it had not been possible to identify any individual "within these companies, who is the controlling mind for the purposes of Manslaughter charges". In a detailed reply dated 10^th March 2005 the claimant's solicitors observed that the fact that North Eastern Roofing was not incorporated made it easier, not more difficult, to prosecute Mr Clarke for manslaughter. So far as Midas Construction Limited and Hayes Engineering Limited were concerned, the claimant's solicitors stated that there was a reasonable inference that there would be identifiable individuals in the companies responsible for health and safety and that, at the very least, further reasons were required why a controlling mind could not be identified.
10. In a further letter dated the 17^th March 2006 Mr Griffiths replied on behalf of the defendant.  He noted that the letter of the 10^th March, and the associated review, had only been concerned with the issue of corporate manslaughter.  On behalf of the claimant complaint is made of this. The claimant suggests that the family's legitimate expectation was that they were holding off an application for judicial review on the basis that full further consideration of the decision whether to prosecute both individual and corporations was to take place. There is force in that point but it does not take matters further having regard to the fact that further consideration was given to the question whether individuals should be prosecuted.
11. In his letter of 17^th March 2006 Mr Griffiths stated that he had carried out a further review in relation to the possible prosecution of Roy Clarke, Jason Ryan and Caine Hayes.  He confirmed the view expressed in his letter of the 23^rd August 2005.  He stated:-

"Whilst I am satisfied that Roy Clarke and Jason Ryan had a duty of care towards the deceased and, further, whilst I am satisfied that Clarke and Ryan were in breach of that duty, I remain firmly of the opinion that the degree of negligence exhibited was not such as to amount to criminal negligence.

The following factors were of influence:-

(1) The suggestion that the deceased had some experience in the building trade.

(2) Both Clarke and Caine Hayes indicated that the deceased had been told specifically not to go anywhere near skylights.

(3) That there was no reason for the deceased to have got on to the old roof of the Matalan premises.

(4) That there was no reason for the deceased to have gone on the roof in any event.

(5) That the deceased was specifically told by Jason Ryan not to go onto the roof.

The negligence amounts to a failure to ensure that the deceased received proper safety training and a failure to properly supervise an inexperienced worker."

12. It is this decision and in particular the five factors on which Mr Griffiths relied to support the decision not to prosecute Roy Clarke which became the subject of the application to move for judicial review. By the application, detailed criticisms are made of the decision and of the five factors said to have influenced Mr Griffiths. In particular, notes of evidence given at the inquest were produced in support.
13. In a witness statement dated 1^st June 2006, prepared for the purposes of resisting the application, Mr Griffiths developed the reasons for his decision.

"I have reviewed the factors of influence in the light of the further information now available to me now made available to me.

1. The suggestion that the deceased had some experience in the building trade.  I accept that this was a suggestion made by Roy Clarke in his PACE interview.  I also accept that there was no other evidence to this effect.  If Roy Clarke's submission were to be rejected this would be a contributory factor towards the level of negligence alleged against Roy Clarke.  Since my advice was based upon the question of whether the degree of negligence exhibited was sufficient to amount to criminal negligence this factor would not have changed the outcome of my advice.

2. That both Clarke and Caine Hayes indicated that the deceased had been told specifically not to go anywhere near the sky lights.  Both Caine Hayes and Jason Ryan gave evidence to the inquest jury that they believed they had told the deceased specifically not to go near sky lights.  Although their evidence was somewhat "watered down" from their PACE interviews they both believed that they had made reference to sky lights and the dangers inherent in going on or near them.  Roy Clarke in his PACE interview clearly indicates that the deceased had been told not to go near the sky lights.  Even if it is accepted that the deceased received general advice rather than a direction this again goes to the degree of negligence and would not have changed my opinion.

3. There was no reason for the deceased to have got onto the roof of the Matalan premises.  There appears to have been no evidence given to the inquest which suggested that there was a reason for the deceased to have got onto the Matalan premises.  Foreseeability that he might do so again goes to the degree of negligence exhibited and would not have changed my opinion.

4. That there was no reason for the deceased to have gone onto the roof in any event.  Again, there is no evidence available that the deceased was instructed to go onto the roof or that it was suggested that he might do so to render assistance to his colleagues.  There may have been "nothing unusual" about him going onto the roof and it may have been foreseeable that he might go onto the roof but again this goes to the degree of negligence involved.  Knowledge of the evidence given to the inquest jury would not have altered my decision.

5. The deceased was specifically told by Jason Ryan not to go onto the roof.  I am told that Mr Ryan conceded to the inquest jury that he had told the deceased "not to bother" going onto the roof.  He did not give any indication that he believed that the deceased had not heard him.  If the advice given by Ryan was a suggestion as opposed to an instruction this would again go to the degree of negligence exhibited."

14. Permission to apply for judicial review was granted by Mr Rabinder Singh QC sitting as a deputy High Court Judge on 21^st August 2006, and the matter came before us on 30^th November 2006.
15. Full skeleton arguments were put in by Mr Richard Hermer, on behalf of the claimant and Mr Milwyn Jarman QC, on behalf of the defendant. Mr Hermer also lodged a supplemental skeleton.
16. At the commencement of the hearing before us there was filed by the CPS a statement from Mr Omo providing reasons as to why the CPS had decided not to prosecute the corporations Midas Construction, Hayes Engineering and Hayes Cladding. In the light of those reasons Mr Hermer made clear that the claimant would not pursue judicial review of the decision not to prosecute those companies.
17. In relation to the application which related to the decision not to prosecute Roy Clarke he made clear the position was different. He accepted certain points which were not in issue between him and Mr Jarman. First, that the test for gross negligence manslaughter was as set out in Regina v Adomoko [1995] 1 AC 171 in the speech of Lord Mackay of Clashfern at 187 in these terms :-

"The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."

18. Second, he accepted that, if the claimant were to succeed in his argument that the matter should be remitted to the CPS to reconsider their decision, he had a high hurdle to surmount. He referred us to the consistent theme to that effect in the authorities, to which I shall turn below.
19. Third, he accepted that the fact that an inquest jury had returned a verdict of unlawful killing was not determinative. He accepted there were authorities in which a decision not to prosecute, despite a verdict of an inquest jury, had not been criticised on that basis. He submitted, however, that since the decision for the inquest jury was substantially the same, and taken on the same directions as to gross negligence manslaughter and, in particular, because Lord Mackay in his test referred to it being peculiarly a jury matter, that there was a reasonable presumption that a prosecution would follow. He referred to the words of Lord Bingham in R v DPP ex parte Manning [2001] QB 330 to which I will return.
20. Mr Hermer submitted that he could show that the CPS had failed to follow their own procedures and had failed to consider important evidence or had clearly wrongly analysed important evidence. He submitted that in the result he could establish a failure to act in accordance with the CPS code and he submitted that that would entitle the claimant to succeed in obtaining an order requiring the CPS to reconsider the matter. If necessary, he submitted, he would seek to demonstrate that the CPS' view of parts of the evidence was perverse, although he submitted he did not need to go that far.
21. Mr Jarman accepted that a serious breach of the code would be a ground for quashing a decision but he submitted that the court should scrutinise anxiously suggestions that a wrongful analysis of the evidence meant that there had been a breach of the code, and he submitted that if Mr Hermer were to succeed he would have to show that decisions relating to the evidence were perverse or irrational and, indeed, that he would have to show that the decision itself not to prosecute was perverse.
22. The code demonstrates that the decision to prosecute follows a two stage process: the evidential stage and then, if the evidence is sufficient, the public policy stage. In this case we are concerned with the evidential stage, the decision of the CPS in this case being that the evidence was not sufficient to warrant prosecution. The relevant paragraphs of the code read as follows:-

"5.2 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.

5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant's guilt.

5.4 When deciding whether there is enough evidence to prosecute, Crown prosecutors must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. Crown Prosecutors must ask themselves the following questions:

Can the evidence be used in court?

a. Is it likely that the evidence will be excluded by the court? There are certain legal rules which might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was gathered? If so, is there enough other evidence for a realistic prospect of conviction?

Is the evidence reliable?

b. Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by factors such as the defendant's age, intelligence or level of understanding?

c. What explanation has the defendant given? Is a court likely to find it credible in the light of the evidence as a whole? Does it support an innocent explanation?

d. If the identity of the defendant is likely to be questioned, is the evidence about this strong enough?

e. Is the witness's background likely to weaken the prosecution case? For example, does the witness have any motive that may affect his or her attitude to the case, or a relevant previous conviction?

f. Are there concerns over the accuracy or credibility of a witness? Are these concerns based on evidence or simply information with nothing to support it? Is there further evidence which the police should be asked to seek out which may support or detract from the account of the witness?"

23. On the right approach we were referred first to R v DPP ex parte C [1995] 1 Cr App R 136 where, after a review of the authorities, Kennedy LJ at 141C said:-

"From all those decisions 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."

24. Thus it is established that a failure to act in accordance with the policy set out in the code would provide a basis on which the claimant could succeed.
25. As regards the proper approach to the code, we were referred to R v DPP ex parte Treadaway 31^st July 1997 (Unreported) (Divisional Court). In that case counsel for the applicant relied on a failure to analyse evidence and a failure to take properly into account a judgment in civil proceedings as breaches of the code. Rose LJ reached the following conclusion:-

"We bear in mind that the decision-making power in relation to prosecutions has been entrusted by Parliament to the DPP. The court should be very slow to interfere and should only do so when no reasonable Crown Prosecutor could have reached the decision which is the subject of challenge. But this is a very unusual case indeed. A High Court judge heard evidence from the material witnesses on both sides and, having directed himself as to the high standard of proof necessary in the light of the serious allegations made against police officers, concluded that they had assaulted the applicant. He set out his process of reasoning in detail and expressed his conclusions in trenchant terms. There was no appeal against his decision. In those circumstances, although his decision did not bind the Director, it required, in our judgment, a most careful analysis if a decision not to prosecute was to be made. In our judgment it did not receive such an analysis. The August 1995 conclusions, which we earlier set out, in our judgment demonstrate, repeatedly, a flawed approach, in breach of the evidential test in paragraph 5 of the Code, to which, as it seems to us, the Explanatory memorandum adds nothing of present relevance. The matter was stale, but it did not follow that "the memory of any witness must be suspect" for these were striking and unusual events; there was medical evidence from Dr Chitnis and Professor Knight according some support to the applicant's allegation; and the possibility of a conspiracy based on the allegation of a discredited supergrass was, having regard to the fact that the applicant first complained of assault on the day of his arrest, irrelevant. MrKinnon J's conclusions were manifestly not reached on a "much lower standard" of proof. In each of these respects, the DPP's reasoning in August 1995 was flawed and breaches of the evidential test in the Code of Practice resulted. The 1996 decisions, dependent to a significant degree, as they were, on the reasoning in the 1995 decision, are equally flawed."

26. Buxton LJ in R v DPP ex parte Timothy Jones 23^rd March 2000 (Unreported) (Divisional Court), in considering the earlier authorities relating to a review of a decision to prosecute, said this:-

"26. We have, of course, given very careful regard to that guidance and to similar guidance in other cases. We have to say, however, that those warnings seem to us to have been largely or mainly directed at concerns about the weight that should have been given to certain elements of the evidence, the assessment of weight of evidence being plainly a matter of professional judgment with which this court would be very unlikely to interfere. But, as Mr Turner QC who appeared 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 can understand and act upon? And

(3) has he taken into an irrelevant matter or is there a danger that he may have done so?"

27. What the court found in that case was that the decision maker had not understood the law accurately and that he had failed to take into account certain matters. In the latter regard, having analysed certain of the evidence, Buxton LJ said:-

"48. There is no indication at all that any consideration has been given to whether these failings may be circumstances for which Mr Martell or Euromin are responsible because they represented a failure to take and put in place proper precautions in relation to the dangerous situation that Martell and Euromin had created. That, in my judgment, should plainly have been considered, and has not been. We emphasise again that this is not a point about weight or rationality, but rather a factor that stands out from the basic facts as requiring to be addressed: and which, if it has been addressed at all, appears to have been again addressed in the context of an assumption that the test and the only test was the subjective culpability of Mr Martell rather than objective liability for the dangerous system."

28. We were finally referred to R v DPP ex parte Manning [2001] QB 330. There are two passages of relevance. First, although said in the context of a person killed in lawful custody to which special considerations apply, the thrust of what Lord Bingham said in relation to an inquest verdict seems of more general application. He said this:-

"Where such inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director's decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court's expectation that if a prosecution is not to follow a plausible explanation will be given."

29. Second, albeit recognising the high threshold that must be crossed if a prosecutor's decision is to be interfered with, he did decide to interfere because the court concluded there were points not considered. It is also right to note how the judgment concluded:-

"In doing so we must emphasise that the effect of this decision is not to require the Director to prosecute. It is to require reconsideration of the decision whether or not to prosecute. On the likely or proper outcome of that reconsideration we express no opinion at all."

30. My approach to the arguments in the instant case, guided by the above authorities, is as follows. First, if it can be demonstrated on an objective appraisal of the case that a serious point or serious points supporting a prosecution have not been considered, that will give a ground for ordering reconsideration of the decision. Second, if it can be demonstrated that in a significant area a conclusion as to what the evidence is to support a prosecution is irrational, that will provide a ground. Third, the points have to be such as to make it seriously arguable that the decision would otherwise be different, but the decision is one for the prosecutor and not for this court. Indeed it is important to bear that fact in mind at all stages. Fourth, where an inquest jury has found unlawful killing the reasons why a prosecution should not follow need to be clearly expressed.
31. Mr Hermer's starting point was to make two general points. He submitted that Mr Griffiths had only analysed the evidence by reference to Health and Safety, and had totally failed to appreciate the primary case against Roy Clarke, which was that Roy Clarke had exposed Daniel Dennis to the risk of death by instructing him to do work on the roof without any training and, in particular, without training in relation to the danger of roof lights. The instruction should have been to a young untrained employee not to go on the roof at all or at the very least to warn as to the dangers of so doing. Second, he submitted that Mr Griffiths had totally failed to assess the seriousness of the risk so as to enable him to assess how egregious was the breach of duty of Mr Clarke.
32. Mr Hermer took us to evidence that was before Mr Griffiths to the following effect (i) that Roy Clarke owned North East Roofing and was the boss [statements of Hayes and Ryan, and Parry's interview with the police]; [the word "boss" was used in evidence before the coroner, a note of which Mr Griffiths did not have, but also by Parry in his PACE interview page 573 which Mr Griffiths did have] (ii) that on the morning of the accident Roy Clarke had instructed Daniel Dennis to go onto the roof to work with Caine Hayes and that Roy Clarke had told Daniel to work on the roof on a number of occasions since 1^st April when Daniel started [statement of Harry Baker reporting statement he had from Caine Hayes page 63 of Bundle 1] (iii) that the scaffold had been used as a means of access by Roy Clarke, Jason Ryan, Caine Hayes and Daniel and that Daniel had been on the roof on at least two occasions, once to do some capping around the screws on the sheets [this could, it seems, refer to the Matalan roof] and once to move excess material [which again could refer to the Matalan roof]. This was work he had been instructed to do by Roy Clarke - see statement of Caine Hayes page 10 to 14 bundle 1; (iv) Daniel had received no induction course or training [see for example the statement of Legg bundle 1 page 41]; (v) Caine Hayes was not told about the risks of working on the Matalan Roof [page 12]; Jeffrey Parry did not know the dangers of walking on skylights [bundle 1 page 46].
33. He took us to the PACE interview of Roy Clarke. Roy Clarke began by asserting that he was not Daniel's employer [page 108 and 120]; he also asserted that Daniel had worked in the building trade before [page 116-117]; he asserted that Daniel was told not to go near the roof lights [page 124 and 167 and 172-173]; he asserted that the only time Daniel went on the roof was at the time of the accident, and he asserted that there was no need for Daniel to go on the roof as the timber was in the gutter near the scaffolding [page 191].
34. It was then put to Roy Clarke that there were statements saying that Daniel was on the roof earlier and that Clarke had given instructions to clear the roof. He then accepted that he had given instructions to Daniel to go onto the roof to tidy [page 298] but he said that he never told Daniel to go on to the Matalan roof [page 393 and 395].
35. Mr Hermer then referred us to documents supplied by the claimant and the family stressing the serious risks involved with roofs and in particular skylights. He submitted there was no indication anywhere that Mr Griffiths had considered these documents and thus the seriousness of the risks involved.
36. Finally he took us to a third bundle of documents which were available to Mr Griffiths but which Mr Griffiths accepts he did not consider in the sense of reading them and taking them into account. These included assessments by Mr Baker in considering whether to prosecute Midas and Hayes and Roy Clarke under Health and Safety Legislation. As regards Roy Clarke the investigating inspector reported as follows:-

"Reasons for Proposing Case

Roy Clark is director of North Eastern Roofing Ltd and was a sub-contractor on site at Cwmbran. The principal contractor on this site was Midas Construction Ltd.

Jason Ryan, a sub-contractor to Mr Clark paid Daniel's wages. However, Jason Ryan works exclusively with Roy Clark and it was Roy Clark who arranged the employment. Daniel was given the job, as he was a friend of Daniel's father, Peter Dennis. It was Mr Dennis' belief that Daniel was working directly with Roy.

Mr Clark played a management role on site and was in charge of the cladding works. Therefore, Mr Clark had a direct responsibility for the safety of Daniel Dennis. Daniel had worked on the roof at Cwmbran Retail Park on a number of occasions after instructions from Roy Clark. On a number of occasions, Roy Clark gave Daniel instructions to work on the roof without supervision.

Daniel did not receive any formal induction on the risks associated with roof work and Roy Clark had not carried out a risk assessment, which was required under legislation as Daniel was less than 18 years of age.

Roy Clark has admitted that he did not possess Employers Liability Insurance at this time. However, Hayes Engineering state that he may had been covered by their insurance.

I propose one charge under section 3 of the Health and Safety at Work etc Act 1974.

Alternative Informations

One charge under regulation 19(1) of the Management of Health and Safety at Work Regulations 1998 was considered for "failure to protect young persons employed by him are protected at work from any risks to their health or safety which are a consequence of their lack of experience, or absence of awareness of existing or potential risks". However, the exact employment of Daniel is of some dispute as Jason Ryan allegedly paid his wages and not Roy Clark.

Exacerbating/Mitigating factors

This is best considered in view of the following:

Regina v Howe & Son (Engineers) Ltd (1999) All ER 249

The following principles can be discerned from the decision of the Appeal Court in the above case:

1. How far short of the appropriate standard the defendant fell in failing to meet the reasonably practicability test.

Roy Clark is aware of the risks associated with working at height as he has 30 years experience of roof work. Although the work was controlled by Midas, Roy Clark gave instructions for Daniel and Caine Hayes to work on the roof unsupervised.

2. The degree of risk and extend of danger created by the offence.

There are approximately 40 fatalities every year from falls from height. A number of these are through fragile materials. Given the lack of experience that Daniel had and his young age, the risk is extreme.

3. The extent of the breaches and whether they continued over a long period.

Daniel had worked on the site just seven days prior to the accident. However, he had accessed the roof on numerous occasions prior to his death.

4. The death of an employee or third party

A fatality has occurred as a result of the breaches.

5. A deliberate breach of the regulations for economic gain or to specifically run a risk to save money.

There is no suggestion of a deliberate breach.

6. A failure to heed warnings

7. Prompt admission of responsibility and a timely plea of guilt-mitigating factor.

Not known at this stage.

8. Taking appropriate steps to remedy deficiencies – mitigating factor

N/A. The work was under the control of Midas Construction.

9. A good safety record – mitigating factor

A number of notices have been issued in respect to working at height without adequate control measures, including working near fragile roof lights.

10. The means of the offender are relevant

A company search will be undertaken."

37. Mr Hermer then came back to the five factors and the way they were dealt with by Mr Griffiths in his statement. He began with factors (3) and (4). He submitted that there was evidence of reasons why Daniel might go on the Matalan roof; Roy Clarke had instructed him to go on the roof as part of his job and had never instructed him not to go on the roof. The scaffolding up to the level of the Matalan roof had been used by Roy Clarke, with Daniel, as a means of getting to the new roof via the Matalan Roof. It was obviously foreseeable that he would go on the Matalan roof to fetch a piece of timber whether from the Matalan roof itself or the new roof.
38. Factor (5), that Daniel had been told by Jason Ryan not to go on the roof, was not Jason Ryan's evidence. His statement was that he had told Daniel "not to bother" in the context of a fellow employee going down the scaffolding to fetch some wood from elsewhere. That could not be construed as an instruction not to go on the roof.
39. As regards factor (1), the suggestion that Daniel had "some experience in the building trade" was a suggestion of Roy Clarke's and contrary to the evidence.
40. As regards factor (2), the factor has an oddity in that why would Daniel be told not to go near skylights if Roy Clarke was otherwise asserting that he was being told not to go on the roof? But, in any event, the evidence that he was ever told about the danger of skylights was very weak and not in the language of an instruction. It is evidence, in any event, which a jury might well not accept. From Dean Baker's assessment it can be seen that "a number of notices had been issued in respect of working at height . . . including working near fragile roof lights." Thus Mr Clarke was apparently ignoring such notices.
41. Mr Jarman defended Mr Griffiths' five factors. He took us to a file note made by Mr Griffiths at the time of preparing his letter containing the five factors. He demonstrated by reference to that note, that Mr Griffiths was aware of the possibility that Daniel had been instructed by Roy Clarke to go on the roof as part of his work [page 174]. Mr Griffiths was sceptical of the assertion that Daniel had been told specifically not to go any where near skylights, picking up the point that if the new roof did not have skylights, why was this warning being given? Further Mr Jarman submitted that if one focused on the particular moment when Daniel went up on the roof just before his accident, "there was no reason for [him] to have got onto the roof of the Matalan premises" and indeed "no evidence which suggested a reason", nor, he submitted, was there a "reason for [him] to have gone onto the roof in any event".
42. Mr Hermer's retort to Mr Jarman's submission was simply that to focus on the particular moment was too narrow a focus, and that it overlooked the fact that Roy Clarke had instructed Daniel to go on the roof as part of his working practice and had not instructed him not to go on.
43. It seems to me that, whatever the file note may show, Mr Griffiths has not dealt in his reasons with the real thrust of any case that might be brought against Mr Clarke. There was evidence of a reason why Daniel might have gone on the roof – he had been instructed to do so as part of his duties as an employee, without any training or induction course, or any serious warning about roof lights, and had not been told not to do so prior to receiving that induction course. There is, furthermore, force in the point that by focusing on the particular moment before the accident, Mr Griffiths is failing to take account of the seriousness of a failure to give proper instruction not to go on the roof prior to induction or proper instruction in relation to working on a roof and particularly a roof with roof lights. This is something he should have recognised if he had read Dean Baker's assessment in the file not considered by him, quoted in paragraph 36 above, and there is thus force in the criticism that he failed to take the material in that file into account.
44. There is then the inquest jury's verdict. In his file note Mr Griffiths suggested that his view was that the verdict was perverse and contrary to the evidence. That is not a point of view which Mr Jarman sought to defend and it would not appear to have been Mr Griffiths' view once he came to make his statement where he said this:-

"The decision of the Inquest jury was drawn to my attention by the solicitors for the claimant and was taken into account when I tendered my advice. I will respectfully draw a distinction between the outcome of proceedings before a Coroner's court, namely a declaration as to the cause of death and the outcome of the proceedings before a jury in a criminal trial where a penalty is imposed and the person or persons convicted which could include deprivation of liberty. The approach of the jury in the latter case is likely to be considerably different from the approach in the former case."

45. That paragraph seems to be saying something a little different from what is recorded in the file note as his reason for discounting the inquest jury's decision, but in any event, with the failures already identified in relation to the factors which influenced Mr Griffiths, it cannot be said that Mr Griffiths has provided clear reasons as to why the verdict of the inquest jury should not have lead to a prosecution.
46. I have concluded that the failures identified do provide a basis on which it would be right to refer the matter back to the CPS. My view is that it is seriously arguable that a different decision might be made once account is taken of those matters. I would stress that I am by no means prejudging the decision, which remains one for the CPS. Indeed, despite the failures identified, I have given anxious consideration as to whether in the light of the time that has gone by and the further anxiety which will be visited on the family and those that are awaiting the final decision as to whether to prosecute, it is right to send this matter back when it cannot be put more highly than seriously arguable. I have, however, formed the conclusion that, for the reasons I have endeavoured to give, it is right to do so, but I stress again that it must still be appreciated that the matter is one for the prosecuting authority.

Mr Justice Lloyd Jones: I agree.