N Ltd & Anor, R. v

This is an application by the Crown for leave to bring an interlocutory appeal under section 58 Criminal Justice Act 2003. The prosecution was brought under sections 3 and 33 of the Health and Safety at Work Act 1974. It arose from the death of a welder when dismantling a working platform over the River Thames in 2002. There was extensive argument in advance of the jury being sworn. It culminated in verdicts of ‘not guilty’ being entered after the Judge ruled, at that stage of the proceedings, that there was no case to answer. Say the Crown, there were two things wrong with that:

We have heard argument on the first of those questions only. It was agreed before us at the Bar that the outcome of the pending appeal to the House of Lords in R v Chargot Ltd [2007] EWCA Crim 3032 might affect the second question, although it will not necessarily do so, and that accordingly that second question should not be argued at this stage.

The two company defendants were engaged in a joint venture making improvements and repairs to one of the bridges over the Thames. Some of the work had been carried out from a temporary working platform of some substance, made of sizeable steel girders and sheets. The time had come to dismantle the platform. The first step was to burn off some welds by which the platform was attached to two main horizontal bearer girders immediately underneath it. That could be done from the platform itself. After doing that the welder burned off a number of other welds at a different part of the structure. The platform became unstable as a result, and pivoted, with the result that he was crushed between a girder and a vertical pile set in the river bed. It was the defendants’ case that what he had done had not been foreseeable. It was the Crown’s case that there was a risk to which he was exposed, and that it would have been reasonably practicable to avoid that exposure.

The indictment charged each of the two companies with alternative offences in identical form. In each case the first charged an offence contrary to section 3(1). The offence was particularised as follows:

“….on 10 November 2002, being an employer within the meaning of the Health and Safety at Work Act 1974, failed to conduct its undertaking….in such a way as to ensure so far as reasonably practicable that a person not in its employment who might be affected thereby, namely [the welder] was not thereby exposed to risks to his health and safety during the dismantling of a drilling platform, in contravention of the duty imposed by section 3(1) of the Health and Safety at Work Act 1974.”

Each company also faced a count of contravening Regulation 10 of the Construction (Health, Safety and Welfare) Regulations 1996. Those counts were particularised, so far as material, as follows:

“……contravened regulation 10 in that suitable and sufficient steps were not taken to ensure that the dismantling of a structure, namely a drilling platform, was planned and carried out in such a manner as to prevent, so far as was practicable, a risk of danger to [the welder].”

Before the trial began, and before a jury was sworn, counsel for the two defendants embarked upon submissions to the Judge. The genesis of the arguments addressed to him was a document submitted by the first defendant entitled ‘Preliminary Issue’. That had originally raised three matters, but the first, which related to the form of the indictment, had been resolved by the time the submissions began. The other two were complaints that the breach of regulation counts (3 & 4) added nothing to count 1, and that the Crown had not properly said what its case was about the contribution made by the deceased himself to his own misfortune.

In the end, however, although there were thus some directions which the Judge could have been asked to give, the transcript reveals that relatively little was said about any of them. It can of course be useful for the management of a trial for there to be discussions about issues which will arise. Sometimes it may be quite legitimate for one or other side to invite the Judge to encourage one side or the other to take a certain course, even when he cannot require it. What actually ensued here was a very general discussion which in the end took up a substantial part of two successive days. With hindsight, it can be seen that the difficulties which have ensued might have been avoided if the discussion had been structured around an identifiable application to the Judge to do something specific.

The discussion rapidly broadened into a general complaint by the Defendants that they could not have foreseen what the welder did. The Judge became concerned to see how the Crown put its case. By the end of the first day the Judge had asked who decided what was reasonably foreseeable and counsel for the second defendant had answered that it was for the Judge to say whether that matter could be left to the jury, on the Crown evidence taken at its highest. That led to the Judge enquiring whether there was any objection to his ruling on that point before the jury was sworn. Counsel for the second defendant indicated that he would encourage that. So far as we can see, there was never an occasion when Counsel for the Crown was asked, or volunteered to answer, that question. What he plainly did do was to submit (a) that the case did not depend on a simple question of foreseeability but rather that the Crown contended that there was a risk which included the unexpected, (b) that the onus of establishing that it was not reasonably practicable to take any steps beyond what was done lay, by section 40 of the Act, upon the defendants and (c) that notwithstanding that onus, there were specific failings which the Crown identified against the defendants, including a failure to assess the risks and warn the deceased that the platform might become unstable unless it was dismantled strictly in the order planned.

By the second day, many of the submissions were couched in terms of addressing the question whether on the Crown case taken at its highest, there was a case to go to the jury; in particular, counsel for the second defendant expressly invited the Judge to rule that there was not. As the Judge himself put it, when looking back later at what had occurred, the application had ‘metamorphosed’ into a Galbraith–type submission (R v Galbraith (1981) 73 Cr App R 124).

At the conclusion of the argument, the Judge reserved his ruling, and delivered it the following day. He concluded that no jury, properly directed, could convict of any of the counts. Consequent upon that ruling, at the invitation of the defendants he directed verdicts of ‘not guilty’ to be entered. The court log indicates that those verdicts were entered pursuant to section 17 of the Criminal Justice Act 1967. The power to enter such a verdict which is given by that section arises when the Crown elects to offer no evidence. That is not what happened here. Rather, the Crown indicated that it wished to appeal the Judge’s ruling. The reference to section 17 on the log is probably an administrative error for ‘Not Guilty verdicts entered on the Judge’s direction’; such erroneous reference to section 17 is not unknown.

In brief, the Judge had concluded (a) that in order to succeed the Crown would have to prove that the defendants ought to have foreseen that the welder would do what he did, and (b) that there was no evidence on which the jury, properly directed, could decide that the defendants could foresee this. We say no more than that about his reasoning, because we have not heard argument on the question whether it contained errors of law or not. We record simply that the Crown position is that the Judge was wrong both as to (a) and (b), and the defendants’ position is that he was right.

This ruling by the Judge was made before any evidence was adduced, indeed before any jury was sworn. It was not made on agreed facts. It proceeded upon examination of the witness statements and exhibits relied upon by the Crown, and of a joint memorandum which had emerged from a meeting of the experts on all sides. The Judge also had a note of the way in which the Crown was likely to open the case to the jury. Although as we have said Counsel for the Crown did not address the jurisdiction to rule on a submission of no case to answer before evidence was called, it is not said that he assented to it; it is clear that this was not a case in which the parties jointly asked the Judge to rule upon a particular point.

For the Crown, Mr Clegg QC submits that the Judge simply had no power to entertain a submission of no case or to direct verdicts of ‘not guilty’ until the conclusion of the Crown evidence, at least without the clear consent of all parties.

For the defendants, Mr Caplan QC and Mr Lissack QC submit that the Judge had power to do what he did, alternatively that even if he could not direct that verdicts of ‘not guilty’ be entered, he nevertheless had power to rule that the offences were not made out on the Crown case, taken at its highest. Both submit that it will only be in exceptional or rare cases that the Judge is entitled so to rule, as this Judge did, in advance of hearing any evidence. Their contention is, further, that he is not bound to entertain an application to rule that there is no case at this early stage, so that the defendant has no right to insist on making it. It is, they say, a matter of the Judge’s discretion. That discretionary power is desirable, they say, in the interests of proper case management, so that the court is not obliged to listen to evidence, perhaps for days or weeks, in a case in which it can safely be said that the offence will not be made out.

There can be no doubt about the power of the trial Judge to review the evidence at the conclusion of the Crown case, and to rule as a matter of law, if such be the case, that no jury properly directed could convict on that evidence. This jurisdiction is recognised and discussed in R v Galbraith (1981) 73 Cr App R 124, but of course is far older than that decision. Nor can there be any doubt that if the Judge concludes that there is no case on which the jury could properly convict, he should direct the jury to find the defendant ‘not guilty’. That is an example of the proper division of function between the Judge and the jury. It is trite law that this jurisdiction does not entitle the Judge to form his own view about which evidence should be accepted, or about what inferences should be drawn from the evidence; he is confined to ruling whether the necessary minimum of evidence to establish the crime charged has been called.

This jurisdiction is to be differentiated from the statutory power of magistrates at committal to decide whether the evidence proffered by the prosecution is sufficient to put the defendant on trial: see section 6 Magistrates Courts Act 1980. If the magistrates decide that the evidence is not sufficient to put the defendant on his trial by jury, the order made is by section 6(1)(b) that he be discharged. He is not acquitted. In consequence, it may be open to the Crown to seek to start again, whether by a fresh application to commit, or by seeking a voluntary bill of indictment on the authority of a High Court Judge. Similarly, where the process of committal is by-passed, in the case of offences triable on indictment only, by section 51 Crime and Disorder Act, and the defendant is sent for trial without consideration of the evidence, the Crown Court is given an equivalent statutory power (by Schedule 3, paragraph 2) to dismiss the charge if it appears to the Judge that the evidence against the defendant would not be sufficient for the jury properly to convict him. This power may be exercised only before arraignment: paragraph 2(1)(b). In that case also, the result is not an acquittal, but rather dismissal of the case and the quashing of any indictment thus far preferred. The right of the Crown to seek a voluntary bill of indictment is expressly preserved by paragraph 2(6), although no other way of re-starting the prosecution is permitted. Essentially the same provisions exist in relation to serious fraud cases, where again there is no committal but rather a transfer under the Criminal Justice Act 1987: see section 6(1).

We are not persuaded that the jurisdiction in question in this case is shown not to exist by the fact that, if it did, defendants might choose for tactical reasons to eschew an application to the magistrates to discharge, or an application to the Crown Court to dismiss, in favour of making an application for a verdict of ‘not guilty’ upon a submission of no case to answer. Whatever the powers of the court, there will be situations in which there is arguable tactical advantage in taking one course or another. For example, in some cases the possible tactical advantage might be thought to lie with an application to discharge in the magistrates’ court, especially if there is an apprehension that the prosecution might bolster its case, or repair an omission in it, by way of additional evidence between committal and the Crown Court. We do accept that if the jurisdiction now in question exists, there was no need to create the power to dismiss under Schedule 3 of the Crime and Disorder Act or under section 6 of the Criminal Justice Act 1987. These powers were, however, clearly created in order to place the defendant who is sent for trial under section 51 or transferred for trial under the 1987 Act in a position as nearly as possible equivalent to that of a defendant who is before the justices as examining magistrates with a view to committal: see in particular section 6(7) of the 1987 Act which says so explicitly. The most that can be said is that their creation is some indication that the jurisdiction now in question was not present to the mind of Parliament.

We do not find that surprising, for none of us, nor any of the experienced advocates before us, has ever encountered the exercise of a power to rule on a submission of no case and to direct acquittal in advance of any evidence being called. Nor has anyone been able to find any reported case in which it has been exercised. If this power exists, it must arise at common law, and in that event some acknowledgement of it in authority would be expected. We set out below such references as the cases contain to the possibility of this jurisdiction.

In R v Chairman of London County Sessions ex p Downes (1953) 37 Cr App R 148 the Judge had acceded to a defence submission of no case, made in advance of arraignment on the basis of the depositions, and had quashed the indictments. In a judgment given by Lord Goddard CJ, the Divisional Court granted an order of mandamus requiring the court to try the indictment, on the ground that there was no power to do what the Judge had done. Lord Goddard remarked that no member of the court had ever heard of the quashing of an indictment in such circumstances, nor could any authority be found to support it. That was notwithstanding the presence in the case of an array of extremely experienced criminal advocates. It is true that the court was apparently informed that the Crown intended to serve notice of additional evidence, but the decision was not based upon that feature of the case. The court held explicitly that the only ground on which the court can examine the depositions before arraignment is to see whether, if a count is included for which there has been no committal, the depositions disclose the offence charged: see section 2(2) of the Administration of Justice Act 1933, proviso (i).

In R v Griffiths (1981) 72 Cr App R 307 the Judge had purported to strike out a number of cases on the ground that prosecuting counsel was not immediately in court when they were called on. He then ordered that verdicts of ‘not guilty’ be entered. The Crown obtained voluntary bills of indictment. When arraigned on those new indictments, the several defendants pleaded autrefois acquit. The Judges hearing the new proceedings ruled that that plea could not be made out, because what the first Judge had done was a nullity and had not resulted in any valid acquittal. Those decisions were upheld by this court in a judgment delivered by Lord Lane CJ. In doing so the Lord Chief Justice set out various ways in which an indictment can be disposed of without trial: by plea of guilty, by plea in bar, by a nolle prosequi entered by the Attorney General, by a verdict under section 17 of the Criminal Justice Act 1967 consequent on the Crown offering no evidence, and by a stay on the ground of abuse of process. This decision was before the enactment of the Criminal Justice Act 1987 or the Crime and Disorder Act (see paragraph 16 supra). The purported direction that verdicts of ‘not guilty’ be entered was held to be a nullity. It is true that in that case there was no question of the first Judge having given any consideration to whether there was a case to answer, but Lord Lane’s list of possible methods of bringing proceedings on indictment to a premature end, even if not wholly exhaustive, made no reference to a power such as is here in question, as would be expected if such power existed.

In Attorney-General’s Reference No 2 of 2000 [2001] 1 Cr App R No 36 at 503 the defendant was indicted for the possession of an offensive weapon, a rice flail. The Judge before whom the case came took the view that the case could not succeed. He formed the view that the defendant had a reasonable excuse for the possession of the rice flail (which was admitted) and secondly he thought that the prosecution was a waste of time. The prosecution having declined to offer no evidence, the Judge told the jury at the outset and before the case was opened that it could stop the case immediately and that if it did not, he would, since he was the judge and it was his view which counted. This court held that he had no power to do so. Kennedy LJ said that once a indictment was before the Crown Court the accused must be arraigned and tried upon it unless (1) it was quashed as defective, (2) a plea in bar succeeds, (3) a nolle prosequi is entered, (4) the court has no jurisdiction to try the charge or (5) the proceedings amount to an abuse of the court’s process. He went on to say this:

“The trial judge simply did not have the power to prevent the prosecution from calling evidence on the basis that he thought a conviction was unlikely.”

It is true that to think that a conviction is unlikely may be something less than holding that the Crown evidence does not, on paper, add up to a case to answer. But since one of the grounds on which the Judge had purported to act was that reasonable excuse would be established, if the court had believed that there was power to entertain a submission of no case in advance of evidence being given it would undoubtedly have said so.

In R v Leadbeater [1988] Crim LR 463 the Judge was invited by both prosecution and defence to rule in advance of the case being opened whether there was a case to answer. He ruled that there was. The Defendant thereupon pleaded guilty. He appealed to this court, which dismissed the appeal. According to the note in the Criminal Law Review the judgment contained an observation that the cases in which it would be proper to rule on a submission of no case to answer before the end of the prosecution case were rare, and largely to be found where there was an objection to jurisdiction or an agreed statement of facts. However, firstly, there is no transcript so the context cannot be ascertained. Secondly, the decision in that case was that there was indeed a case to answer and that the defendant had not been obliged by the decision to change his plea to guilty, and that is why the appeal failed. Thirdly, the Judge had been invited to rule by both parties. Fourthly, the court nevertheless held that the Judge had made his ruling at the wrong time. Fifthly, the case of a ruling on agreed facts at joint invitation is quite different from what was done in the present case; we consider it below. For all those reasons, this decision is scant authority for the existence of the jurisdiction in question in the present case.

In R v MacKenzie (1993) 96 Cr App R 98 the defendant had been charged with two killings. The evidence depended on confessions he had made. He had, however, confessed also to twelve other killings, none of which the Crown believed he could have committed and at least some of which he certainly had not committed. There was medical evidence from both Crown and defence specialists which showed that he was mentally unstable. One of the defence specialists had invented a fictitious killing and the defendant had confessed to that also. In the course of a decision allowing his appeal, Lord Taylor CJ said this:

“Applying the guidance given by this court in Galbraith we consider that where (1) the prosecution case depends wholly upon confessions (2) the defendant suffers from a significant degree of mental handicap and (3) the confessions are unconvincing to a point where a jury properly directed could not properly convict upon them, then the judge, assuming he has not excluded the confessions earlier, should withdraw the case from the jury……We are therefore of opinion that when the three conditions tabulated above apply at any stage of the case, the judge should in the interests of justice take the initiative and withdraw the case from the jury.”

The present defendants draw attention to the words ‘at any stage of the case’.

It is to be observed that in that case (a) the unreliability of the confessions emerged in part from the evidence given as part of the defendant’s case by himself and by the doctors called for him, and (b) there had been a submission of no case at the close of the Crown case which had been rejected but there was no ground of appeal suggesting that that was wrong. In those circumstances, we do not think that there is any warrant for inferring from the passage quoted above that this court was assuming the existence of a jurisdiction to rule that there is no case to answer at any earlier stage of the case. It is more likely that the reference to ‘any stage of the case’ was directed to the stage after the defence evidence has begun. There is no doubt that the Judge can rule that there is no case to answer at this later stage: see R v Boakye (unreported 12 March 1992, noted in Blackstone’s Criminal Practice D14.32) and R v Davina Brown [2002] 1 Cr App R 46. Further, in MacKenzie the case on appeal depended on how unreliable the confessions were, and that in turn depended on whether they contained information which only the killer would have known. There were additional grounds of appeal based upon inappropriate remarks in the summing up. The eventual decision was based upon lurking doubt and lack of safety of the conviction, taken overall. A conclusion that the Judge ought to have ruled the case unfit to go to the jury before the close of the Crown case cannot be spelled out of this decision.

The only authorities to which it has been possible for the present defendants to point in support of their claim that the Judge has the jurisdiction to rule on a submission of no case earlier than the close of the Crown’s evidence are the last-mentioned two cases, Leadbeater and MacKenzie. For the reasons given, we do not think that they warrant the weight which it is sought to place upon them. It is clear that the balance of authority is against the existence of the jurisdiction now in question.

There is sound reason for the jurisdiction to entertain a submission that there is no case to answer to be exercised at the close of the Crown case. It is then that it is known for certain what the evidence actually is. Until then, the most that can be known is what it is expected to be. In the present case, whilst it was known what the witness statements said, it could not be known exactly how the evidence would come out. Not every relevant question has necessarily (or even usually) been asked of witnesses at the stage of taking their statements. Moreover this was a case in which a reverse onus of proof was likely to be in question. In any event, we do not see how there can be identified the ‘exceptional’ or ‘rare’ cases in which it is contended by these defendants that the Judge can exercise the discretionary power claimed, and the suggestion that it can only be undertaken on judicial initiative risks blurring the proper distinction between the functions of the Crown and the Judge, and the Judge being seen to make decisions which are, at that stage, properly for the Crown.

That does not mean that it may not sometimes be appropriate and convenient for the parties to agree to ask the Judge to rule as a matter of law whether on agreed or admitted facts the offence charged is made out. A simple practical example is the situation where the end of the Crown case is nigh, subject only to outstanding evidence which it can be known will take a particular form, for example the police interviews. It may be administratively convenient for the parties to ask, or for the Judge to suggest, that an expected submission of no case be made then rather than half a day later, perhaps so that the jury is not unnecessarily inconvenienced. The key point is that the outstanding evidence is known for certain; it is admitted or agreed what it will be. And although the argument may be taken at that point, and a ruling made, any direction to the jury to return a verdict of ‘not guilty’ ought ordinarily to await the end of the Crown case, unless of course the Crown bows to the ruling and offers no further evidence, as it might. Similarly, it may often happen that in advance of the calling of any evidence at all the parties may agree that it would be helpful for the Judge to rule upon the question whether, on agreed, admitted or assumed facts, the offence charged would be made out. That may well be done with a view to the Crown accepting that it may offer no evidence if the ruling is against it, just as it may be done with a view to a defendant considering whether to plead guilty if the ruling is otherwise. The difference from the power here claimed is that the Judge is invited to proceed upon established, or assumed and agreed, facts, and has no power to compel acquittal until the end of the Crown evidence. Under the new rules for interlocutory Crown appeals under section 58 of the Criminal Justice Act 2003, such a course might also be taken by the Crown in the knowledge that it could decide to appeal an adverse ruling if willing to give the acquittal agreement pursuant to section 58(8) and accept acquittal if it fails.

Nor do we in the least discourage beneficial active case management by the Judge, which may, in some cases, include judiciously expressed views designed to encourage, within proper limits, a course of action by one side or the other, just as it may include directions as to the manner in which evidence will be given. We have no doubt that it is open to the Judge, in a proper case, to suggest to the parties that he be invited to rule on agreed or admitted facts in the manner set out in paragraph 27. Providing that the Judge is scrupulous to avoid descent into the arena and any claim to control of either side’s case, such case management is desirable and necessary in pursuit of the overriding objective set out in the Criminal Procedure Rules. We are confident that Judges have sufficient powers to avoid, without the jurisdiction now in question, the spectre adverted to by Mr Caplan of courts routinely being obliged to listen to weeks of unnecessary evidence when the outcome is a foregone conclusion.

For these reasons we give leave to appeal and allow the Crown’s appeal. That leads to the question under section 61 of the Criminal Justice Act 2003 what order should be made. The defendants contend pursuant to section 61(5) that no order for the resumption of the trial or for a fresh trial should be made because it is not necessary in the interests of justice. The basis for that contention is, in effect, that the Judge reached a reasoned conclusion which was open to him, and the result is that the prosecution was and is bound to fail. Without embarking on the second question in this case, we are satisfied that in this case the interests of justice do require that the evidence be heard and its sufficiency judged at the proper time, either by the Judge, if there be renewed submission that a jury could not properly convict, or by the jury. We think that there should be a fresh trial before a different Judge. It should take place at the same Crown Court, unless the Presiding Judges of the South Eastern Circuit direct that it should take place elsewhere. We record that we make that order on the basis that the Crown has undertaken that such trial will not take place prior to the decision of the House of Lords in R v Chargot Ltd.

For the reasons explained, we allow this appeal solely on the first of the two grounds of appeal set out at paragraph 1 above, namely the jurisdictional question. We have not heard argument on, and say nothing about, the second question, that is to say whether the Judge was right or wrong to rule that in order to succeed the Crown had to establish that what the welder did was foreseeable by the defendants. Still less do we say anything at all about the likely outcome of this prosecution.