R v Director of Public Prosecutions ex parte Jones (Timothy)

In the High Court of Justice Queen's Bench Division (Divisional Court)

Thursday, 23rd March 2000

B e f o r e

Lord Justice Buxton

and

Mr Justice Moses

- - - - - - -
1.	LORD JUSTICE BUXTON: These proceedings arise out of a horrific accident that occurred on 24th April 1998. The deceased person, Mr Simon Jones, was working for a company called Euromin at the docksside at Shoreham by Sea in Sussex. It was his first day of employment with that company. He had been sent to them by an employment agency. The evidence is that he had received no training from the agency in respect of the particular work that he was required to do and did not receive any formal training from Euromin. The operation in which he was required to take part involved the unloading of bags of cobble stones from the hold of a ship that had drawn up alongside. The machinery used in that operation was a crane, a Liebherr R984. That crane (which is well set out in the photographs that the court has) is supplied with both a grab bucket and a lifting hook arrangement. Those are alternative attachments to be placed upon the arm of the crane. The evidence was that it took about one hour to change from one attachment to another. 

2.	The appropriate use for the grab bucket, as described in evidence before the court from a senior representative of Liebherr, is for the lifting of loose material, an operation that will be familiar in its nature to anybody who has seen building or construction work or indeed road mending work in operation. 

3.	It is essential, clearly, to the successful operation of such a lifting operation that, when the jaws of the grab bucket are activated, they should close rapidly and effectively in order to contain the material in the bucket. The evidence further was that the lever provided in the driving's cab for closing the bucket was very sensitive in its operation and when it was operated the bucket would close immediately in one second. In the present instance, as I have said, the bucket was in use, but it was being used not to lift loose material out of the hold but to lift the bags of cobble stones. That apparently was an operation that had been followed by Euromin for some considerable period and we were also told that other companies followed a similar course. 

4.	So far as Euromin was concerned, the lifting by use of the grab bucket had originally been done by wrapping welding straps around the bucket and then attaching those straps to the bags or other defined material that was being lifted. However, at the initiative of Mr Martell, the Managing Director of Euromin (and it is agreed the moving force in its operations at least at the Shoreham by Sea site), the Liebherr 984 was adapted, though not by its manufacturers, by having two hooks fitted within the grab bucket. To those hooks could be attached chains and to those chains the bags could be more conveniently fitted. One of the points to notice about that arrangement was that, because of the presence of the chains, it was not possible to close the bucket, and therefore this operation of lifting bags carried on with the bucket open. That necessitated the workers who were taking part in the operation standing near to, and in some cases it appears immediately under, the open bucket in order to attach the bags to the chains. They were, therefore, in peril if the bucket should close. Most regrettably that is what occurred on this unhappy occasion. Mr Simon Jones who was standing under the bucket was caught in it and, we have to say, decapitated. He died apparently almost instantly. 

5.	On the day in question Mr Martell was not on the site. The operations were, in general terms, in the charge of a Mr Grant, an employee of the company. The person who was the actual driver or operator of the Liebherr 984 was a Mr Harris. Mr Jones was working in the hold together with a Mr Currey, who was, equally, a casual labourer employee of Euromin. He said that he also had not received any training for the work, but he had been told in general terms by Mr Grant what he should do and how the matter should be operated. At page 6 of Exhibit SO/1 (that is to the say the bundle of witness statements that we have) Mr Currey describes the arrival on the day in question of Mr Jones, and said this: 

"... When we got into the hull I went through various safety procedures with Simon. I had not been asked to take on a supervisory role or explain safety procedures to Simon, but as I had experience of working for the company, I decided to explain the layout, routine and safety to him. 

I told him where to stand between the bags, and how to load the bags onto the chains." 

6.	Mr Grant gave some evidence at page 27 of that same bundle about Simon Jones's arrival. He said this: 

"... At about 9 am all the men were coming in and Simon came into the office and said he was from the agency. I told him he could put his gear in the mess room and told him to go down to the quayside where the rest of the men would be and they would sort out who would do what. ..." 

7.	That appears to have been the only contact that Mr Jones had with his employers. I shall in due course return to one or two other aspects of the facts. 

8.	Upon Mr Jones' death occurring, understandably there were investigations both by the Health and Safety Authority and by the police. Much of the material before this court consist of statements made to or taken by the police investigation. We are told that the Health and Safety Executive are bringing prosecutions against Euromin for breaches under sections 2 and 3 of the Health and Safety at Work Act, and also under the regulations implementing those sections in more detail. 

9.	Additionally, on 5th May 1998, that is to say some two weeks after the accident, the Health and Safety Executive served an improvement notice and two prohibition notices under sections 21 to 24 of the Health and Safety at Work Act 1974. The improvement notice required, to put it briefly, that there should be training and instruction such as was necessary to ensure the health and safety of employees. The two prohibition notices first of all concerned the operation of the Liebherr 984 with the lifting chain attachment and prohibited the use of lifting chain attachments within the grab of the excavator; and secondly prohibited the use of the excavator in an area where other persons would be at risk. 

10.	The present proceedings relate to a quite different matter, that is to say the decision of the Director of Public Prosecutions not to proceed against either Mr Martell or Euromin in respect of, plainly, the much more serious matter of negligent manslaughter. The proceedings are brought and relief is sought by Mr Timothy Jones, who is the brother of Mr Simon Jones. 

11.	The Director's original decision, that he would not bring proceedings for manslaughter, was taken on 31st March 1999. It was taken, according to the evidence, on the basis of advice from leading counsel. The present proceedings were originally brought in respect of that decision of March 1999. One of the points, though not the only point, that had been made in correspondence by the Director was that it was not possible to show a causative link between the act of fixing the hooks on the grab and the death of Mr Jones, because there was no sufficient evidence of why the grab had closed. It was on that aspect of the decision-making that this application originally focussed, an application for certiorari in respect of the decision and mandamus to reconsider the decision not to prosecute. 

12.	The application for leave to move was heard by Mr Nigel Pleming QC sitting as a deputy judge of the High Court, after an oral hearing, inter partes, at which the Director was represented by leading counsel. Mr Pleming granted leave. We have seen his judgment which was brief (and not to be criticised, of course, for that). Its effect is set out in paragraph 3 of the witness statement of Mr Stephen O'Doherty on behalf of the Director in these proceedings. He says: 

"... [In granting leave] the Judge indicated, amongst other things, that he regarded the Applicant's case as being arguable insofar as it questioned the approach adopted by the Crown Prosecution Service to the issue of causation in the context of this particular case, although as I understand it, the Judge accepted that the decision not to prosecute might prove to have been justified on the separate basis that any negligence established was not sufficiently serious to satisfy the relevant test for gross negligence manslaughter. ..." 

13.	It is correct that that point was in issue and taken by the Director, that is to say the necessary test and standard for gross negligence manslaughter, quite apart from the causation issue which was the subject of most discussion before Mr Pleming. 

14.	After leave had been granted, the whole matter and the original decision was reconsidered by the Director. He delegated that task to a solicitor member of his Casework Directorate, a Mr O'Doherty. Mr O'Doherty's determination on behalf of the Director, equally deciding not to prosecute, is set out in an affidavit that he swore on 18th November 1999. In this substantive application the Director now relies, and relies only, on that affidavit. In this judgment references to paragraph numbers without further identification are to that affidavit. It was agreed that the application should be reformulated in order to complain of the 18th November 1999 decision. That was a realistic decision because the case now is different in its emphasis from that which it took before Mr Pleming. No objection has been raised by the Director, and sensibly so, if I may say so, to the amendment of the application in that sense. 

15.	It will be necessary to refer to a significant part of Mr O'Doherty's reasoning. First of all, at paragraph 6 he says that he has applied the evidential test in the Code for Crown Prosecutors. Then he says this: 

"... This is clearly such a serious case that if the evidential test is satisfied then it would be in the public interest for a prosecution to ensue. In undertaking this review I bore in mind that I must be satisfied [and then Mr O'Doherty quotes from the Code] '... that there is enough evidence to provide a realistic prospect of conviction...'." 

16.	Next, in paragraph 12, so far as the position of Euromin is concerned, as opposed to that of Mr Martell, Mr O'Doherty expresses himself satisfied that Mr Martell held a sufficiently senior position in the company for him to be characterised as the directing mind of Euromin, so that if Mr Martell were guilty of gross negligence in the criminal sense, by the same token Euromin would equally be so guilty. In so concluding, Mr Martell was, of course, applying (though he did not say so and did not need to say so) the well-known test laid down by the House of Lords in Tesco v Nattrass. Mr O'Doherty then turned to the issues in the case, dealing, first, with the question of duty. At paragraphs 13 and 14 he says this: 

"13. On the material before me I was satisfied that there is a realistic prospect of satisfying a jury that both Mr Martell and the company owed Simon Jones, the deceased, a duty of care. 

14. I was also satisfied on the material before me that there is a realistic prospect of satisfying a jury that there were breaches of the duty of care owed by Euromin and Mr Martell to Simon Jones. In general terms I concluded that there is a realistic prospect that a jury would find a failure, in various respects, to provide a safe system of work and that if a safe system of work had been in existence the death would not have taken place." 

17.	At paragraph 15, Mr O'Doherty then turns to what he described as the "real issue in this case": 

"The real issue in this case seemed to me to be the question whether the degree of negligence that could be established against Mr Martell and Euromin was sufficiently serious to provide a realistic prospect that a jury would be satisfied that both were guilty of manslaughter, applying the test in Adomako..." - a case to which I shall have to return. 

18.	It will be noted, as I have already said, that although that real issue was an issue in the original application before Mr Pleming, the point principally debated before him was to complain of the Director's decision on the matter of causation. The causal barrier originally espoused by the Director has now been abandoned, and it is not even referred to by Mr O'Doherty. The sole question and the sole issue is the Director's decision, taken on his behalf by Mr O'Doherty, that the evidence is not sufficient to provide a realistic prospect of satisfying the jury that Mr Martell was guilty of gross negligence in terms of the current law of negligent manslaughter. 

19.	Mr O'Doherty expressed his conclusion on that point in paragraph 25 of his affidavit, which it is convenient to set out now, though I shall have to return to it. He says this: 

"I concluded, on the evidence before me, that Mr Martell was negligent in his failure to set in place a safe system of work. This is sufficient for a prosecution under the Health and Safety at Work Act 1974, but to establish the offence of manslaughter more is required. I have referred to the Bateman test above, which shows that in deciding whether or not there should be a conviction a jury must be satisfied that the defendant, by his negligence showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. It is my view that, bearing in mind the factors set out above in particular, the evidence taken as a whole was not sufficient to provide a realistic prospect of satisfying a jury that Mr Martell was guilty of gross negligence sufficient to satisfy the test in Adomako." 

20.	In order to put that conclusion in context, we need to remind ourselves of the law of gross negligence manslaughter. That is to be found in the case already mentioned R v Adomako 1 AC 171, HL, where the leading, and indeed the only substantive, judgment is given by Lord Mackay of Clashfern LC. In particular, he sets out what should be the correct approach at page 187B of his judgment: 

"... in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal." 

21.	I interpose to say that the reference to "the patient" was simply a reference to the particular facts of that case where the accused was a doctor and the victim was a patient under his care. 

22.	The elements that Lord Mackay sets out are duty, breach and causation. Those three elements are, as Mr O'Doherty has already indicated, all accepted to be fulfilled in this case. The question that then has to be answered is whether the breach was sufficiently gross and was sufficiently an act of gross negligence to be decided to be a criminal matter, a question that Lord Mackay said was essentially a jury issue. 

23.	In order to understand certain parts of the argument in this case, it is necessary to go on and say this about Adomako. Elsewhere in his speech Lord Mackay refers to the concept of recklessness in the sense of a subjective understanding or appreciation of the risk. But there was never, I have to say, any serious doubt that the test of liability that he laid down in the passage that I have just cited, which is undoubtedly the ratio of his judgment, is objective; and any doubt that there may have been on that point and any uncertainty about the relationship between the objective test in Adomako and the subjective state of the accused's mind (and, speaking for myself, I think there was no doubt) has now been laid to rest in the judgment of the Court of Appeal, Criminal Division, in R v Attorney-General's Reference (No.2 of 1999) (unreported) Transcript, 15th February 2000. In that judgment, Rose LJ set out competing arguments about the role of subjective recklessness, for instance as to be found in Stone [1977] QB 354. Rose LJ, at page 5 of the transcript, said this: 

"... Although there may be cases where the defendant's state of mind is relevant to the jury's consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant who is reckless as defined in Stone may well be the more readily found to be grossly negligent to a criminal degree." 

24.	The law is, therefore, quite clear. If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of any recklessness if on an objective basis the defendant demonstrated what, for instance, Lord Mackay quoted the Court of Appeal in Adomako as describing (page 183C) as: 

"... failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded he should address ..." 

25.	That is a test in objective terms. That is the law on negligent manslaughter which the Director has to apply in this case. However, the duty of this court is not, as has often been said, to do the Director's work for him. There are significant limits on the extent to which this court can intervene in respect of a decision of this type taken by the Director. Although, as was properly agreed, the test remains that of the ordinary judicial review jurisdiction, clear guidance has been given in earlier cases as to the way the court should approach that jurisdiction. In particular, we were taken, amongst other cases, to R v Director of Public Prosecutions, ex parte C [1995] 1 Crim. App R and the observations at page 139G of that report. Intervention should be "sparing" and only on the grounds of (a) unlawful policy, (b) failure to act in accordance with policy and (c) perversity. 

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 judgement 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.	Those factors can be further illustrated by reference to the judgment of Brooke LJ, giving the judgment of this court, in R v Crown Prosecution Service, ex parte Hitchins (unreported) Transcript, 13th June 1997. Brooke LJ said at page 29D: 

"In our judgment it was entirely a matter for the Crown Prosecutors to determine how much weight they should give to the verdict of the inquest jury, and it would be an abuse of language to stigmatise their decision as perverse or irrational because they did not give it the paramount attention that Mr Ryder [counsel for the Applicant in that case] claims it should have been accorded. It was essentially a matter for the Crown Prosecutors to decide, in the exercise of their professional judgment, whether there was a realistic prospect of convicting Mr Davies on the evidence available to them. We are satisfied that they carried out their duties carefully and conscientiously and at an appropriately high level..." 

28.	Brooke LJ went on to say that although he would sympathise with the connections of the victim, the court could not interfere. Brooke LJ there emphasises the importance of the Crown Prosecution Service's, their knowledge of the law, and the use of their practical skill and experience where a question was before them, as was before them in that case, of what weight should be attributed to a particular event. He certainly did not mean, in my respectful judgement, that this court has to, or indeed can, ignore concerns as to whether the law applied was in fact correct; or has to, or can, assume the operation of practical experience when conclusions are either merely asserted or are, or may be, based upon a misunderstanding. 

29.	With these considerations in mind, I turn to the way in which Mr O'Doherty explains the decision which he took on behalf of the Director. I have quoted from paragraph 15 of the affidavit the issue that Mr O'Doherty thought to arise. He then went on in paragraph 16: 

"In answering that question, I took a general overview of the case, but bore in mind in particular the following factors which might be capable of affecting the degree of negligence attributable to Mr Martell. These were: 

(i)The roles of Mr Grant and Mr Harris. 

(ii) The adaptation to the Liebherr. 

(iii) A combination of other circumstances to which I refer below." 

30.	As I have already set out, he reached the conclusion that he indicated in paragraph 28. I go straight to the difficulties that, in my judgement, his treatment presents. 

31.	Correct application of the law 

32.	While Mr O'Doherty correctly recites the Adomako test apparently as one of objective negligence, I have to say that, read as whole, his decision whether Mr Martell's conduct would be found to be negligent appears to be based upon Mr Martell's personal perceptions. Thus, in paragraph 19 of his witness statement Mr O'Doherty draws attention to the concern expressed by Mr Martell about safety issues, and in paragraph 26 averts to the fact that Mr Martell had no knowledge of the highly sensitive joystick having been moved by an accidental movement by the driver on a previous occasion: something that appears to have happened in this case. 

33.	As to Mr Martell's concerns about safety, it should be said that he bases those on handwritten notes made by a Mr Stallard which do not conform, in my judgement, to the actual witness statement that Mr Stallard in fact offered to the police. I set that on one side for the moment. If the matter should go further, that would be a matter to be investigated. The point in issue is that Mr O'Doherty relies on what he deems to have been Mr Martell's personal concern about safety. 

34.	The misapprehension about the test is, in my judgement, further demonstrated by Mr O'Doherty's reference to Bateman (1925) 19 Crim. App R 8, which, it will be recalled, he particularly refers to in his decision in paragraph 28. In paragraph 11 of his witness statement Mr O'Doherty quotes what is said by Lord Hewart CJ in that case in the following terms: 

"... in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to a amount to a crime against State and conduct deserving punishment." 

35.	That is an objective test; or at least if there was any doubt about that when Lord Hewart so said, it was clearly held to be such a test by the House of Lords in Adomako. When, however, Mr O'Doherty gives his actual decision in paragraph 28, he refers to Bateman, but attributes to it a different formulation from that adopted by Lord Hewart. I repeat what Mr O'Doherty said: 

"... I have referred to the Bateman test above, which shows that in deciding whether or not there should be a conviction a jury must be satisfied that the defendant, by his negligence showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment." 

36.	The change from the language actually used by Lord Hewart is, in my judgement, not merely a formal issue, but one of substance. That is because paragraph 28 in its new form, and the Bateman formulation in its altered form, without further explanation reads as if the reference is to Mr Martell's lack of subjective recklessness, and that it is this that was dispositive with Mr O'Doherty in deciding that there was no realistic prospect of a jury convicting Mr Martell. 

37.	Mr Turner indeed accepted that Mr O'Doherty had considered and placed weight on Mr Martell's lack of subjective recklessness. That was demonstrated by the matters set out in Mr O'Doherty's statement which I have already mentioned. It is also demonstrated by the reliance by Mr Turner in his submissions on the fact that there was no evidence that anyone had warned Mr Martell that the use of hooks with chains, when men were working under the grab, was dangerous. It was submitted that Mr O'Doherty had been entitled to avert to these considerations because, as previous authority had made plain, if there was subjective recklessness a conviction for criminal manslaughter was easier to obtain. 

38.	There are two issues arising from about that rationalisation, as rationalisation I believe it to be. First, it is far from clear, to put it at its lowest, that that is what Mr O'Doherty was in fact saying, not least because he himself never says it. The witness statement, and particularly that part of section paragraph 28 which I have read, reads as if Mr O'Doherty was confining himself to subjective recklessness. Second, Mr Turner argued that even if that was so, Mr O'Doherty was entitled to conclude that, absent subjective recklessness on the part of Mr Martell and there being no other factors that made it likely that a jury would convict, there was no realistic prospect of a conviction. This again was from Mr Turner's argument, and not anything opposed by Mr O'Doherty. 

39.	There are two problems about the alter argument. The first is that, picking up the language of Brooke LJ in Hitchins, Mr Turner said that Mr O'Doherty was entitled to use his experience and knowledge to conclude that juries were reluctant to convict except where an individual had been guilty of what they could recognise as subjective fault. We should assume that that is what he had concluded in this case. 

40.	I am afraid that I do not see that that follows. Granted that the Director has chosen properly and prudently not to remain silent about his reasoning, but has set out for the court and also, it should be remembered, in the legitimate interests of Mr Jones' family a fairly detailed account of his decision, I see no reason why it should be assumed that a very important, indeed a central, consideration that is not mentioned at all, a consideration very relevant to the question of whether the law has been properly applied, was in fact taken into account. 

41.	The second difficulty is that Mr O'Doherty says almost nothing about the other factors that, in the absence of subjective recklessness, would militate against a jury convicting. Mr Turner said that that was accounted for by Mr O'Doherty's statement that he had taken into account a general view of the case. But I am afraid that in a case such as this that will not do. I say nothing as to the final outcome of any future proceedings, but it was not I think disputed that the circumstances gave rise to serious questions about Euromin's operations, as the reaction of the Health and Safety Executive demonstrated. It is not good enough in such circumstances to rely on a blanket reference to the general evidence. It should be emphasised that in saying that I am not finding the Director to have been irrational or perverse, nor am I differing from any decision that he has in fact taken. The complaint arises at an earlier stage, that once it is seen that the absence of subjective recklessness is not a complete answer, then some further explanation must be given of the decision if the court is not to draw adverse inferences about it. No such explanation is given. 

42.	In my judgement, the relevant law has not been properly addressed in this case. That in itself is enough to grant the relief sought. There are further matters that lead to the same conclusion. 

Obviousness 

43.	Mr Turner argued that a factor in the decision was whether the objective danger in the system was sufficiently obvious to make failure to attend to it criminally culpable. 

44.	It was agreed that the system operated by Euromin under Mr Martell's direction was unsafe, that is to say dangerous. The question was whether its unsafety and the degree of that unsafety was sufficiently obvious to make its introduction, or the failure to rectify it, criminally negligent. We were then again asked to assume, without any guidance from Mr O'Doherty, that he had taken that into account in considering a jury's view; but again we have to say that this was a matter that called for an explanation, an explanation that it did not receive. 

45.	The point can be put in this way. A clear and potential (and we emphasise potential) major criticism of Mr Martell and Euromin is that they set up the unsafe system already referred to. It was unsafe because, inter alia, it arguably presented a danger of death - the danger that in fact had eventuated. Such a system requires detailed precautions to be taken to ensure that the incipient dangers did not in fact eventuate. It would appear that no sufficient training was given to the operatives to achieve that end. It is potentially relevant that Mr Grant was apparently not given any instructions that prevented him from recruiting a Mr Kasprzak, an untrained Polish seaman who was given the role crucial in this operation of directing the operations of the crane; or that Mr Harris was not given any specific warning about what was known to be the very sensitive joystick. The relationship between Mr Grant, Mr Kasprzak and Mr Harris was of great importance because the operation was such that Mr Harris, the crane operator, could not see what was going on in the hold or who was standing there unless he was told about it by the man standing on the deck. The man on this occasion appointed by Mr Grant who was in charge in Mr Martell's absence was Mr Kasprzak, who had never done the job before. In fact, as I understand (though I may be wrong about that) he did not in fact speak the English language. 

46.	Mr O'Doherty, however, appears or may appear to rely on these factors, the role of Mr Grant and of Mr Harris in the general operations, not as inculpatory of Mr Martell or of Euromin, but as exculpatory. One of the matters that he says he took into account in reaching his conclusion that an insufficient degree of negligence could be attributed to Mr Martell was what he described as "The Combination of Other Circumstances". Those are set out in paragraphs 23 to 27 of his witness statement. I think that I need to read them: 

"23. There were essentially three factors which provided an unfortunate combination of circumstances in the events leading up to the death of Simon Jones. These were 

(a) The absence of the usual hatchman and the employment of Mr Kasprzak. 

(b) The accidental movement of the lever which was closed the mechanical grab on the Liebherr. 

(c) The shortened chains. 

24. The evidence indicated to me that the hatchman holds a critical position in ensuring the safety of the men into the hold. In the words of Mr Harris 'he's God'. This is because the crane operator cannot see in the hold and therefore has no idea when it is safe to move the clamp. He is completely reliant upon the guidance given by the hatchman. A hatchman was essential to this operation. 

25. As the Court will see from the evidence, Mr Grant asked the captain of the ship to supply one of the crew men to act as hatchman. Mr Kasprzak was selected. It does not appear that Mr Grant made any effort to determine the experience of Mr Kasprzak. There was no formal system in place to ensure that the hatchman was experienced and understood the signals from the man in the hold and was able to signal effectively to the crane driver. There was no common understanding of the signals between Currey/Kasprsak and Harris/Kasprzak." 

47.	I interpose that Mr O'Doherty's account of the modus operandi is further borne out by Mr Currey's evidence and his description of the great difficulties that this lack of communication caused to those working in the hold. 

"The Joystick 

26. The evidence points to Mr Harris as being the person who inadvertently moved the lever, closing the mechanical grab. According to him this had never happened before. As the control of the joystick was highly sensitive, to Mr Martell's own knowledge, it is arguable that just such an accidental movement should have been contemplated by him, but the fact that it had never, to his knowledge, happened before is also relevant to the degree of negligence attributable to Mr Martell. 

The Shortened Chains 

27. The evidence indicates that the chains holding the hooks had, unknown to Mr Martell, been shortened by Mr Harris from their usual 8 feet to about 6 feet, so there was less 'headroom' between the bottom of the chains and the jaws of the clamp. However, as it appears that the chains were allowed to lie across the bags, the shortening of these chains appears of only marginal relevance as the instructions given to Mr Harris by Mr Kasprzak resulted in the grab being well below what was actually required or safe. The shortened chains left less room for error." 

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 judgement, should plainly have been considered, and has not been. We emphasis 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. 

49.	As to the more general matter of whether the danger was obvious, the only reference that I have been able to find in the evidence, and the only point that we were taken to, was a reference in paragraph 22 to a Mr Ingram, a service engineer for the Liebherr company. Referring to the adaptation of the grab, to enable it to be used to pick up bags in the way I have already described, Mr O'Doherty says this: 

"Although the adaptation had not been authorised, it can be seen from the statement of Christopher Ingram who was a service engineer for Liebherr GP Ltd that he had serviced the machine on 17 March 1998 and that although he noticed the hooks, he never mentioned it to anybody. Although his job was one of service and not of safety inspection, if the adaptation had been so obviously a danger that it caused him concern, it is a reasonable inference that he would have mentioned this either to Euromin Ltd or to his own employer." 

50.	That, as I say, appears to be the only point at which obviousness is, or may have been, specifically considered. But Mr Ingram was not concerned with the way in which the Liebherr 984 was operated and says so in terms in his evidence. At page 32 of the bundle of statements Mr Ingram says (and this was the passage read to us during argument): 

"I am aware of two hooks, which are welded to the centre column of the grab. I am not sure how long they have been there but believe it was some time towards last year 1997. ... I thought that they must be using the hooks for some form of lifting but have never seen the excavator used for anything other than moving aggregate and when I have serviced the machine I have never seen anything attached to the hooks. 

I have never spoken to anyone at the company about the hooks so do not know exactly what they were used for." 

51.	No explanation is given by Mr O'Doherty as to why he prefers Mr Ingram's evidence to the evidence of Mr Vine who was the service manager for Liebherr and Mr Ingram's superior. He does specifically comment on the safety implications of the adjustment. He says at page 33 of the witness statements: 

"... We would not put or approve the use of chains in the grab. The grab is used to unload and re-handle aggregate. It is operated by the driver to close on a loose load which would then be moved and unloaded elsewhere." 

52.	He says something about working pressure and the service manual, and then he says: 

"With such pressure being exerted on the grab it is not safe for any person to be within the work area of it. This is clearly stated in the Accident Prevention section of the Instruction Manual ..." - which he then produces: 

"If the machine were to be used with chains to lift items other than loose aggregate, the lift hook attachment should be used." 

53.	It will be borne in mind that that was a standard attachment to this machine that could be fitted to it in the time of about one hour. 

54.	If obviousness is indeed addressed by Mr O'Doherty, it is insufficient in doing so to rely on a man who never saw the machine in operation and who was only the maintenance engineer, and not to refer at all to the specific evidence of the manufacturer and Mr Ingram's superior. If this passage in the evidence is the ground for concluding that the danger was not sufficiently obvious, then I do say that that conclusion was irrational. Other than that, there is no specific reference in Mr O'Doherty's witness statement to the issue of obviousness which we were told in argument was central to this case. 

Reasoning 

55.	I have referred to a number of instances in which we are asked to make assumptions about what Mr O'Doherty in fact concluded. I will just briefly remind ourselves of what those were: 

(i) that Mr O'Doherty referred to subjective recklessness because of his concern about specific authority saying that in a case of subjective recklessness a conviction of manslaughter was more easy to obtain. 

(ii) that there was a perception that juries would be reluctant to convict absent subjective recklessness on the part of Mr Martell. 

(iii) the question of obviousness and the fact that that had been taken into account in considering the likely prospect of a jury conviction. 

56.	But in the case such as the present the court cannot properly assess the decision that it is considering unless it has some idea of what was decided and why it was decided. It is not possible, for the reasons I have indicated, to draw that from Mr O'Doherty's witness statement. In this case there are unanswered questions, such as the danger of the system, the effect of the danger of death that resulted, the adaption of the crane in a manner not recommended by the manufacturers and the general working arrangements where the crane man cannot see into the hold and his guide was a person with no training and who had not done the job before. The court cannot just assume, with no assistance, that the decision that there was no reasonable prospect of convicting of negligent manslaughter was not irrational. It must have that assistance. That is a further reason why this decision must be reconsidered. 

57.	I would therefore order that certiorari should go in this case to quash the decision. I would order mandamus that the decision be reconsidered in the light of the judgment of this court. It is of course a matter for the Director at what level that reconsideration takes place. The Director will no doubt wish to attend to this matter with despatch in view of the interests not only of the Jones family but also of Mr Martell and of Euromin. 

58.	MR JUSTICE MOSES: I agree.