Cova Products Ltd, R. v

J U D G M E N T

1. Lord Justice Kennedy: On 19th December 2003 in the Crown Court at Newcastle upon Tyne the appellant, Cova, was convicted of two offences contrary to the Health and Safety at Work Act 1974 and was fined. That company appeals against conviction by leave of the single judge.

2. Cova Products Limited had a factory in Northumberland where they manufactured sheet vinyl. For that purpose they used a very large calendar machine in line 4 which incorporated two mixers known as Banbury mixers. Raw materials were fed into a hopper from which they went into the mixers, and after mixing they were released into a large bucket on a conveyer.

3. In October 2001 there was a problem with one of the mixers and Cova engaged Carter Brothers Limited, who had an international reputation in the field, to deal with the problem. It was decided to replace one of the Banbury mixers together with its hopper, and Carters provided two experienced men, Greenwood and Glenn Williams, to do the job. It could have been done over five weekends when all of the machinery would be stationary, but Carter preferred to do it all at once and Cova agreed to that. The job really required three men so Cova made available Merilo, an experienced fitter of their own, to assist Carter with the work.

4. The work began on Friday 26th October 2001 and by Monday 29th October 2001 it was substantially completed. The question then arose whether the machinery could be restarted with the relevant Banbury mixer remaining isolated. The buckets had been removed so the effect of restarting would be intermittent movement of the conveyer. It never did run continuously.

5. No one present at that time considered that restarting the machinery would give rise to any problem. All that remained to be done was to tighten some latch bolts which could be reached from a platform at an intermediate level above the conveyer. They had been loosened from below when the conveyer was stationary, but could be tightened from above if two men did the job, one holding the wrench and the other operating it. Greenwood and Merilo were going to do that job, but before they embarked on it Merilo went off to get some sealant which Glenn Williams required for a different task.

6. What happened whilst Merilo was away is not clear, but it seems likely that, working from the intermediate level platform, Greenwood attempted on his own to start tightening the latch bolts. He dropped the wrench and then squeezed through a gap on the north side of the platform in order to try to recover it. The wrench probably fell through the small gap on the south side of the platform, but no one could get through the gap on that side and the tool could have been recovered perfectly easily and safely without going through the gap on the north side. Having gone through the gap, Greenwood was caught by the movement of the conveyer and sustained fatal injuries. His body was discovered by Merilo when he returned.

7. The matters to which we have just referred are helpfully illustrated in a series of photographs taken by the parties and the police after the accident. The access to the intermediate platform was by means of the left hand red ladder on photograph RF 1. Having climbed that ladder, a fitter could move forward into the head restricted area occupied by the man in photograph RF 4. Just ahead of that man's right knee, and in photographs RF 5 and 6, can be seen the gap on the north side of the platform through which Greenwood probably climbed, as illustrated by the man on photographs RF 7 and 8. In RF 8 the man is sitting on the ledge on which the woman in the respondent's photograph AH 17 has placed her feet. The wrench probably fell through the 12 inch gap on the south side of the platform which can be seen in photograph RF 11 in order to reach the position shown in police photograph 5.

8. The position of the latch bolts is shown in photograph RF 12. When they were loosened the fitter was able, as in that photograph, to stand on the conveyer. In order to tighten them with the conveyer in operation the men would have to lie on the platform and apply the wrench to the bolts as in photograph RF 14, but for a fitter that was not an unusual task.

9. The Health and Safety Executive brought criminal proceedings against both Cova and Carter. The indictment contained three counts based on two subsections of the Health and the Safety at Work Act 1974. Those subsections are:

"2(1) It shall be the duty of every employer to ensure so far as is reasonably practicable the health, safety and welfare at work of all his employees."

10. And:

"3(1) 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 and safety."

11. It is convenient to refer also at this stage to one other section of the 1974 Act, section 40, which, so far as material, provides that:

"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 ... reasonably practicable ... it shall be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement ..."

12. In count 1 of the indictment Cova was charged with contravening section 3(1) by failing to conduct its undertaking, namely maintenance work on calendar line 4, in such a way as to ensure so far as was reasonably practicable that Greenwood, who might be affected thereby, was not exposed to risks to his safety. In count 2 Cova was charged with contravening subsection (2)(1) by failing to ensure so far as was reasonably practicable the safety of its employer Merilo whilst carrying out maintenance work on calendar line 4. Finally, in count 3 Carter was charged with contravening subsection (2)(1) by failing to ensure so far as was reasonably practicable the safety of its employee, including Greenwood, during the carrying out of maintenance work on calendar line 4.

13. The jury returned verdicts of guilty in relation to counts 1 and 2 and of not guilty in relation to count 3.

14. The first ground of appeal advanced by Mr Morton for Cova is that those verdicts are irreconcilable so they cannot be allowed to stand. He also initially raised two other grounds of appeal. One related to the refusal of the trial judge to accept a submission made at the conclusion of the prosecution case that there was no case to answer in relation to count 2 and the other relating to the directions in law which were given by the trial judge to the jury. The single judge did not grant leave to appeal in relation to the second ground of appeal and before us Mr Morton decided not to seek to pursue that ground.

15. We decided to hear first submissions on both sides in relation to ground 1. Having heard those submissions, we concluded yesterday that the appeal must succeed in relation to that ground. It was not, therefore, necessary for us to hear submissions in relation to ground 3 and we did not do so.

16. It is unfortunate that by the time of trial Carter was in administrative receivership and so was not represented. The judge told the jury not to hold that against Carter, but in reality Carter as the employer of Greenwood and the expert company undertaking the particular maintenance work in the course of which their employee died should have been the first defendant, and, as became apparent when the verdicts were returned, the order of the counts in the indictment was potentially misleading. Count 3 should have been the first count, and, even if it was not, the jury should have been told to consider that count first. It was of some importance, because, as the judge rightly told the jury, Carter having failed to appear, in the light of section 40 reasonable practicability could not be said to be a live issue in relation to that count, and the injuries which Greenwood sustained raised at least a prima facie case that Carter had not done what was necessary to ensure his safety. That conclusion was not inevitable, but, as Mr Matthews for the respondent submitted to us, it was at least likely.

17. Mr Morton for the appellant puts it the other way round. He submits that in order to acquit Carter, as the jury did, the jury must have concluded that Greenwood deliberately squeezed through the gap on the north side of the platform and that his action in doing so was so foolish as to be unforeseeable and outside the scope of his employment.

18. It is convenient to turn next to count 2, because it also relies on section 2 of the 1974 Act, and upon the state of affairs which led to Greenwood's death, but it relates to a different defendant, namely Cova, and a different employee, namely Merilo. In substance it alleges that because there was a gap on the north side of the intermediate platform through which a man could squeeze and because the conveyer was intermittently in motion Cova failed to ensure, so far as was reasonably practicable, the safety of Merilo, who, in due course, would have gone to work on that platform. But, as Mr Matthews accepts, if the state of affairs was not such as to put Carter in breach for its statutory duty to Greenwood, it cannot have been such as to put Cova in breach of its statutory duty to Merilo. That is self-evident without reference to the issue of reasonable practicability which Cova did raise in relation to both counts 1 and 2. It follows, as Mr Morton points out, that the judge was wrong to direct the jury without qualification that they could return different verdicts on different counts.

19. They should have been told that, unless they convicted on count 3, they could not convict on count 2. The same direction was required in relation to count 1, which was formulated in relation to section 3 of the 1974 Act. Cova was undoubtedly an employer and there was persuasive evidence that the maintenance work on calendar line 4 was its undertaking, even though Carter was primarily responsible for that work (see the speech of Lord Hoffman in Associated Octel [1996] 1 WLR 1543). But that was an issue of fact for the jury. Assuming that it was resolved in favour of the prosecution, the statute provided that it was the duty of Cova to ensure, so far as was reasonably practicable, that Greenwood, a person not in the employment of Cova who may be affected by the conduct of the undertaking, was not exposed to risks to his safety. In the circumstances of this case it is impossible to conceive of any way in which it would logically be possible to conclude that Cova was in breach of its obligations under section 3, but Carter was not in breach of its obligation under section 2. That is why Mr Matthews was right to conclude and concede that the verdicts which were returned are logically inconsistent.

20. We are, of course, conscious of the advantage of hindsight, but, for the reasons we have given already, it seems clear to us that if more thought had been given to the order of the counts in the indictment, and to the order in which the jury should consider those counts, the difficulty which gives rise to this appeal would never have arisen. The jury, properly directed in relation to the count involving Carter, would have appreciated that a verdict of guilty in relation to that count was a prerequisite to a verdict of guilty in relation to either of the counts involving Cova. If the jury was inclined to stray, it is worth recalling that in Harris [1964] Crim LR 54, Lord Parker CJ made it clear that where two verdicts are inconsistent the judge is entitled to refuse to accept the verdict and to ask the jury to reconsider the matter. If the matter had been approached, as we consider that it should have been, the inconsistency would have been obvious and could have been corrected without the need for an appeal.

21. That leads to the next point, namely the desirability in a case such as this of there being a proper discussion between the judge and counsel at the conclusion of the evidence and before final speeches as to the issues of law and of how they should be presented to the jury. In this case there was a submission at the close of the prosecution case, and it is the recollection of Mr Morton that there was then some discussion as to the law. The judge also helpfully arranged for the jury to be provided with an aide memoire, apparently prepared by counsel for the prosecution. But there was not, so far as we can ascertain, the sort of interchange which, in our judgment, there should have been and which has been so often advocated in this Court. It could have led to the counts being considered in what we regard as the right order and led to the production of a note which would have steered the jury passed the trap into which they fell.

22. Turning to the effect of the inconsistency. As Mr Matthews rightly submits, the fact that the verdicts are shown to be inconsistent will not automatically lead to the verdicts of guilty being set aside. That will only happen if those verdicts are shown to be unsafe. What we now have to consider is whether that is the situation in this case. Our attention has been drawn to a number of authorities and it is helpful to look at them in chronological order. In Durante (1972) 56 Cr App R 708, Edmund Davis LJ at page 714 cited with approval the test formulated by Devlin J in 1954 in the unreported case of Stone , when he said that an appellant alleging inconsistency must satisfy this Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury, who had applied their mind properly to the facts in the case, could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand.

23. Mr Morton submits that the test is satisfied in this case. He also asks us to note how the test was applied in Durante , where the defendant was convicted of handling a stolen cheque, but acquitted of endeavouring to obtain money on a forged instrument, namely the same cheque. At page 714 Edmunds Davis LJ said:

"It may be that the irrationality of the jury is manifested by their acquittal on the second count and that a finding of guilt upon the first count was an entirely rational one, being solidly based upon the evidence. But we are here in the realm of conjecture."

Mr Morton submits that the same approach should be adopted in this case.

24. McKecknie and others (1992) 94 Cr App R 51, is a decision on which Mr Matthews relied. Three men had entered the home of the deceased and one of them, McKecknie, had inflicted head injuries whilst the two others damaged property. McKecknie was convicted of manslaughter on the basis of provocation and the others were convicted of causing grievous bodily harm with intent on the basis that they were involved in a joint enterprise. Their convictions were quashed, but the conviction of McKecknie was allowed to stand, Auld J saying, at page 59, that not every inconsistency between verdicts justifies interference by this Court.

25. At the foot of page 61 he said:

"Where one verdict is readily explicable from the way in which the prosecution have put the case, from the evidence and from a proper direction from the judge on the law and facts, and where the second may well be attributable to the jury's attempt to do justice on the facts regardless of the constraints of the charges or to a failure by the judge to give adequate directions as to the consequences for the second verdict of a possible conclusion on the first, the Court could properly form the view that only the second verdict should be quashed."

As Mr Morton submits the verdicts in the present case cannot simply be attributed to the evidence, the direction, or the way in which the prosecution put the case, even if, as we have indicated, it could have been more helpfully presented in another way.

26. McCluskey [1994] 98 Cr App R 216 was also a case of homicide. The jury was directed that if they convicted the defendant of either murder or manslaughter, then there was no defence to the count of affray, but nevertheless they convicted of manslaughter and acquitted of affray. At page 220 Henry J, giving the judgment of this Court, referred to Trundell , 28th June 1991 (unreported), in which it had been said that logical inconsistency alone might not be a reason to quash a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.

27. That was not found to be demonstrated in McCluskey , and at page 220 Henry J continued:

"The matter can be approached in another way by testing that conclusion against what other explanations there may be. Here, this jury, having taken time, acquitted of murder and convicted of manslaughter. They could justifiably have felt that they had then reached the only important decision in this case and that all that followed, namely count 2 affray, was academic -- as in reality it was. A consecutive sentence would have been wrong as all arose out of the same incident. We regard the acquittal on the relatively minor charge of affray as reflecting no more than that. Certainly that acquittal goes no way to persuading us that this jury misunderstood the main issue on the murder charge. To make such a finding on so slight a basis would be an insult to the jury."

Clearly that approach cannot be applied in the present case. Count 3 was in no sense academic, or a relatively minor charge, and to suggest that the jury may have acquitted of that offence because they knew that Carter was in receivership is pure speculation.

28. In a note at [1994] Crim LR 860, Professor Sir John Smith doubted whether much assistance could be derived from Trundell, and submitted that:

"... a better view would be that the conviction is not safe unless the court is satisfied that the verdict is not based on the confusion or wrong approach of the jury; and that, once the verdicts are shown to be inconsistent, the burden of persuasion is on the Crown, not the appellant."

In our judgment, there is much to commend that approach.

29. In Clarke and Fletcher 30th June 1997 (unreported), Hutchison LJ said that an appellate court will not conclude that the verdict is unsafe if:

"... notwithstanding that it is logically inconsistent with another verdict, it is possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency."

No such train of reasoning has been suggested in the present case, and, in any event, as Professor Smith pointed out at [1998] Crim LR 484 and 485, how can a legitimate train of reasoning, itself a matter of speculation, lead to logically inconsistent verdicts.

30. In R v Nelson Group Services (Maintenance) Limited [1999] 1 WLR 1526, the defendant company was concerned with the installation of gas appliances in domestic premises. The work was not well done and both the company and the employee who carried out the work were charged with contravention of the same statutory obligation. The company was convicted, but its employee was acquitted. At 1540 Roch LJ said:

"Mr Wood [for the Crown) struggled valiantly to escape from the fact that the two verdicts could not be reconciled, having at the outset of his skeleton argument conceded that there was a logical inconsistency in the verdicts. In the view of this court, what Mr Wood's submission came down to was that the jury might have had considerable sympathy for Mr Radcliffe and little sympathy for the appellant. We content ourselves with saying that if that indeed was the jury's approach, then that was an improper approach. We prefer to view these verdicts as being logically inconsistent and as being explained by the jury for some reason thinking that the duty on the employer was more stringent than that upon Mr Radcliffe, having misunderstood the clear direction given by the Recorder. In our judgment the conviction on count 3 of the second indictment is unsafe and the appellant's appeal against that conviction must be allowed."

Mr Morton submits that we should adopt a similar approach in this present case, and in our judgment that is correct.

31. Mr Matthews attempted to get round the problem of inconsistent verdicts by submitting that the prosecution case in relation to counts 1 and 2 was so strong that we should be satisfied as to the safety of the verdicts on those two counts. We cannot agree. As we have indicated, there were live issues to be considered in relation to those two counts, and, given that the jury was not satisfied as to the guilt of Carter in relation to count 3, where there was less to consider, we cannot properly conclude that the verdicts on counts 1 and 2 were safe. That is why we said yesterday that this appeal must be allowed and the convictions quashed.

32. We further order that the successful appellants recover from central funds their costs here and below, those costs to be assessed if not agreed.