Bodycote H I P Ltd, R (on the application of) v HM Coroner for the County of Herefordshire

MR JUSTICE BLAKE: On 2nd February 2006, following a short inquest that had begun on 30th January 2006, a jury, summoned by Her Majesty's Coroner by the County of Herefordshire, returned an inquisition on the deaths of two men that occurred within the district of the coroner. They returned, as part of that inquisition, verdicts of unlawful killing on both of them. By this application the claimant company seeks to quash those verdicts, permission to bring these proceedings having previously been granted by Collins J on 22nd August 2006.

The brief facts can be summarised as follows.

On Monday, 14th June 2004, the two men who died were found dead on the landing of a pit operated by the claimant company in Hereford in connection with their commercial activities. The activities included hot isostatic processing that was carried on on metal components in order to strengthen them. The process involved the introduction of argon gas under pressure into a machine called "the Press" which is located in a pit in the company's premises at Hereford, those premises being part of a UK company which is itself part of a broader international company concerned with such production of matters.

Because the industrial process uses argon gas very serious health and safety issues arise. From the evidence that was adduced before the Coroner, it is plain that argon gas is a gas that is significantly heavier than air and will sink if released into the atmosphere. If you use a procedure whereby argon gas escapes into a confined pit then that gas will drive out the oxygen content of healthy air and reduce it below the 21 per cent proportion of oxygen to air necessary for life. A percentage of only 16 per cent oxygen in the air would, according to the expert evidence, present serious risk to life and could result in a normal person without any previous health ailments becoming unconscious within minutes and dead within minutes after that.

The perils of working in an environment where this gas may be present were further underlined at the inquest because argon is colourless, odourless and tasteless, which means that someone who is being exposed to it is not aware, without more, that he or she is being exposed to it.

The two men who died were first, Stuart Jordan, who was an experienced employee of the claimant company and was the site or works manager of the company at the particular premises and had been for some years. He was the most senior person employed by the company present on the site on a regular basis, although would answer to the directors of the company for the performance of his duties. As indicated, he had worked for the company for some years, had apparently been trained in the perils of working with argon gas, although it appears that no precise record of the precise content of his training had come to light in the form of documentation before the inquest. However his full job description demonstrates that his responsibilities included implementation of the company's health and safety procedures at the site.

The second man who died was Richard Clarkson. He was employed as the works engineer at the site. He was junior to Mr Jordan in terms of his responsibilities, and would have taken instructions from him; but he also would necessarily have been aware that argon gas is dangerous, and his own job description included an obligation to carefully monitor safety procedures.

The precise circumstances of the deaths were considered by the jury and, in the light of the order that this court is proposing to make pursuant to this application, they will have to be re-examined by a future jury and in those circumstances the least said the better, having regard to the fact that there will be a fresh inquest. Nevertheless, to set the matter in context, it appears that both men, possibly one after another, went down into the pit on 14th June to investigate something that was going wrong with the procedure. Their unconscious bodies were seen shortly after. Emergency services were called, they were found to be dead. What caused them to go down into the pit was not immediately apparent. However, it appears that on the previous day there had been an attempt to process metal machinery in the press but there was insufficient argon to complete the process. There appears to have been a leak from argon under pressure from the press into the pit and then a number of factors may have contributed to the events which tragically resulted in the deaths of these two men.

First, it seems that a fan that ought to have spread gases and cleared them was not working and had not been working since the two months previously following a power cut in April 2004.

Secondly, it seems that the machinery that should alert anyone contemplating going into the pit by means of an oxygen reading, and an audio alarm if oxygen fell below 19 per cent consistency in the air, had been overridden, so that the alarm did not sound.

Thirdly, there was a body of evidence called before the Coroner and the jury to indicate that persistent practice at the particular site had been that the audio alarm was frequently overridden by a number of employees, not limited to those in a supervisory capacity; and that many employees, including members of the reception staff, had gone into the pit without all the prior procedures to check that it was safe for them to do so and that they were doing so for a legitimate and authorised reason.

Fourthly, the jury were directed that there was no evidence that these two men were intending to harm themselves by going into the pit, and their verdict indicated they were not satisfied that there was any such explanation. In which case it is likely that neither of them was aware of the potentially fatal consequences of their entry down there. That must mean that one or other or neither of them had checked visual monitor of the oxygen level that was properly functioning even though the alarm was not.

Fifthly, it appears that neither were carrying personal oxygen monitor or any other form of equipment that would have enabled them to be alert to the presence of argon gas down there.

Sixthly, it appears that the logs that should be kept restricting access and the means by which access would be supervised were not completed in this case and had not been completed in many similar cases.

The Coroner heard from the employees at the site and also heard from the directors of the company, some of whom had different responsibilities in connection with health and safety policies, the conduction of health and safety audits and so on. The Health and Safety Executive had also conducted an investigation into the matter and it was apparent from the inquest held nearly two years after the deaths that there had been very many fundamental changes at the site since the deaths.

However, the claimants submit that, whatever the nature of the evidence, the Coroner failed to direct the jury sufficiently as to the law relating to unlawful killing by way of gross negligence where it is contended that the gross negligence concerned is that of a corporate entity rather than any individual with the particular responsibilities and duties.

One has considerable sympathy for the Coroner in conducting this task. First, because only one potentially interested party was legally represented at the inquest, and that was the claimant company who appeared through its solicitor. Secondly, it does not appear that any submissions were made that it was not open to the Coroner to leave to the jury as a potential verdict in the inquisition the verdict of unlawful killing at all. Thirdly, no submissions were made by the claimant's solicitor at the hearing as to the particular form of directions that would need to be given if a potential route to a verdict of unlawful killing might involve the responsibility of the company as a corporation, that is to say, corporate manslaughter at common law.

Further, if the Coroner had done his own research into this topic by looking at the standard textbook, namely the 12th Edition of Jarvis on Coroner's 2002, the relevant discussion of the law of homicide would not alert him to the particular problems in tailoring directions to the question of corporate manslaughter. Moreover, somewhat surprisingly, even if the Coroner had consulted Archbold, he might not have been given the full assistance on this topic that he might otherwise have been expected from experienced counsel or others who had knowledge of the developing law in respect of corporate manslaughter, since the section on gross negligence manslaughter does not address in any detail the specific requirements that would be necessary to find a company liable for gross negligence manslaughter at common law.

The only reference in Archbold to what is relied upon in this court, namely the leading authority of Attorney-General's Reference (No 2 of 1999)[2000] 2 Cr App R 207, deals only with the first proposition of the appellant Attorney in that case and not the second. Nevertheless, it is clear that where anybody is considering the common law liability of a corporation for unlawful killing by gross negligence they would need to be aware of the state of the law as declared in that case in the judgment of Rose J. Briefly put, the law is that before a company can be criminally liable for manslaughter there has to be liability for manslaughter in a human person and that human person must have the status of a directing mind of the company and therefore be said to be the company for the purpose of criminal responsibility. What that case demonstrates is that the common law does not attribute to the company every failing by every one of its employees, of whatever seniority, not having the status of a directing mind of the company. And very frequently one has to see exactly what the company, through its directors and it's directing mind, would or should have known before determining whether what they did or failed to do meets the standard of truly gross negligence as required by the criminal law.

This was, however, a case where, as the brief facts outlined indicate, there were really quite serious issues to investigate and, in my judgment, those issues remain open for further investigation as long as proper and adequate directions are given at the end of the day in the light of any evidence that is adduced and heard by the jury.

Without seeking to impinge in any way upon the function of the Coroner to consider what directions he or she will need to give, and what potential verdicts may be open, it is apparent that a number of possibilities may need to be explored. First, it might be said that Mr Clarkson's death, the more junior of the two employees, was caused, to a significant degree for the purpose of the criminal law causation, by the failure of Mr Jordan to implement and apply basic health and safety techniques to ensure that checks were always made before any person was authorised to descend into the pit.

Secondly, it may be that Mr Jordan's training was not sufficient for him to appreciate the real gravity of the dangers to which he was exposing himself or others under him by entering the pit without rigorous application of all the necessary measures to prevent this kind of tragedy. That would involve consideration of what signs were in the premises, what any manual said, what any instructions were given in a training manual and matters of that sort. Thirdly, it may be that there was an insufficiently rigorous risk assessment by the company through any of its responsible directors and controlling officers of whether its policies were sufficiently robust to take into account the human element; that is, downplaying the requirements of health and safety in the interests of getting on with the practical application of the job. Fourthly, it may be that the investigations into whether health and safety procedures were being sufficiently implemented, or being implemented at all, were not sufficiently intrusive, having regard to the very real risk to life that exposure to argon gas appears to represent.

Finally, in a case of this sort, even if a properly directed jury could not or did not conclude that the evidence presented to them justified their finding on a criminal standard that any person had been guilty of a breach of duty of care to anyone else of a sufficient standard of grossness as to engage criminal responsibility, nevertheless an inquisition might well inform as the circumstance of the deaths by means of a narrative verdict. Given the heightened scrutiny in cases of avoidable deaths under the Human Rights Act 1998 in respect of death after 2nd October 2000, a jury might well have concluded that it was necessary to recite whatever particular circumstances of concern that caused these deaths in a narrative verdict either as part of, or as an alternative to, a verdict of accidental death which is otherwise the obvious preset alternative to unlawful killing.

Narrative verdicts may have a particular relevance in cases where the jury record particular breaches of duties, or particular failures to foresee risks, which should be recorded so that the industry can be alerted and all others concerned with the tragedy in this case can learn lessons for the future.

I therefore conclude that, although the summing-up to the jury on the question of breach of duty by an employer or the company was inadequate to direct the jury's mind to the need for one individual at least to have had sufficient foresight and responsibility to have done something different to that which was in fact done, it cannot be said either that there is only one possible verdict that could be returned or that there would be no value whatsoever in this inquest being reconvened or a fresh inquest being called and a fresh enquiry taking place. Undoubtedly there is always concern when matters have become stale through the passage of time and the families and others have had to go through the anxious times that one does when the deaths of their loved ones are being looked at. However, the purpose of inquest law is to conduct an exacting enquiry, and when there is something worth investigating as to how the deceased came by their deaths for that record to be made and for lessons to be learnt. The hazardous nature of this particular process and this particular gas has already been indicated, exposure to which undoubtedly caused the deaths of these two men.

It would be a rare case that the court could substitute a verdict of its own for the verdict of the jury and it is not necessary here to decide what the limits of that power are.

The basis indicated so far in this judgment for quashing this verdict renders it unnecessary to explore other matters that were relied upon in the original application for permission and other defects alleged to exist in the Coroner's summing-up when it came to a discharge of the duty to explain to the jury what gross negligence meant, applying the principles in R v Adomako [1995] 1 AC 171, and other complaints about causation and such like.

There was common ground between the claimant, the defendant coroner who has not appeared in these proceedings, and counsel for one of the interested parties; namely Mrs Jordan, the widow of Mr Jordan, that no direction, as required by Attorney-General's Reference (No 2 of 1999), to which I have already referred, was given and such reference was required in the context of this case. There is no agreement beyond that. However, since I have concluded that the verdicts cannot stand in the light of the insufficient directions given by the Coroner, then other matters do not need to be determined.

Two supplementary questions arise. First, whether the fresh inquest should be conducted by this coroner or another coroner. The court has heard nothing to suggest that this inquest must be conducted by another coroner, although it may well be that when he comes to consider this case the learned Coroner for Herefordshire might consider it appropriate to assign it to a deputy or to a neighbouring coroner who is willing to accept the case, whether for reasons of logistics or his previous connection with this case or otherwise. That will be a matter for him to consider and this court will say nothing about it.

The second matter is that this court was informed that the Health and Safety Executive may be considering a prosecution for some breach of statutory duty that falls within their competence to prosecute. If that is the case, this court would not wish it to be thought that such a prosecution would need to be adjourned until the outcome of any fresh inquest. A prosecution for a breach of statutory duty, if there is to be one, is concerned with a different issue than the issues before the Coroner and the inquest jury; namely, how the deceased came by their deaths, although of course there may be some overlap.

The court observes that section 16 of the Coroner's Act 1988 enables the Director of Public Prosecutions to notify the Coroner that some person has been charged with a criminal offence, whether or not involving the death of a person other than the deceased alleged to have been committed in circumstances connected with the death of the deceased; and in those circumstances the Coroner is bound to adjourn until the conclusion of those proceedings. No such notification has been given by the Director and it is unlikely that the Director would wish to give such notification. Of course if he does, then nothing this court says will impact upon the application of the effect of such notification upon a stay, but in the absence of such a notification there is no reason either for the Coroner not to proceed as expeditiously as possible with reconvening this inquest or with the Health and Safety Executive from discharging any outstanding obligation they may have to bring proceedings for breach of statutory duty. Those are only observations made to assist those who may have to consider these matters; they are not intended to be orders of law which have not been the subject of full argument.

However, for the reasons I have attempted to outline, the verdicts of unlawful killing in respect of both Mr Jordan and Mr Clarkson will be quashed. It will be unreal to separate the two verdicts, although it may be that different circumstances will arise in respect of each of them. I direct that there will be fresh inquests into both deaths, those fresh inquests it appears from the statutory regime will need to be conducted with a coroner sitting with a jury. The identity of the Coroner is left to this defendant to determine in the light of this judgment and any representations that may be made to him. To this extent the application is allowed.

MR HORLOCK: There is no application for costs.

MR JUSTICE BLAKE: Thank you.