York College & Anor, R v

Submission of No Case to Answer

On 17 September 2012 Lydia Bishop, a 3 year old girl on her first full day at the nursery at York College, was found dead on a slide in the playground. She had strangled herself on a loop of rope that was hanging down the slide. The loop was itself part of a much longer length of rope, some 16 metres or more in total, which was wrapped around the stanchions of the slide.

Following a police investigation, the teacher supervising Lydia, Ms Sophee Redhead, and York College, were charged with various breaches of the Health and Safety at Work Act 1974. In addition, Ms Redhead faces a charge of gross negligence manslaughter. On Day 10 of the trial, following the close of the Prosecution case, those acting for her made a submission of no case to answer in respect of that allegation only (Count 2 on the indictment). That application is opposed by the Crown. I am very grateful to both leading counsel for their clear and concise submissions.

I remind myself of the test in R v Galbraith[1981] 73 Crim App R 124:

“(1)

If there is no evidence that the crime alleged has been committed by the defendant, the case should be stopped.

(2)

If there is some evidence but it is of a tenuous character, i.e. because of inherent weakness or vagueness or because it is inconsistent with other evidence:

(a)

where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b)

Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

In order to reach a conclusion as to whether a jury, properly directed, could properly convict Ms Redhead on the charge of gross negligence manslaughter, it is necessary for me first to consider the law relating to that offence; then to analyse all the evidence, including particularly that of the Crown ‘at its highest’; before going on to decide whether or not the submission of no case has been made out.

The Law relating to Gross Negligence Manslaughter

My attention has been drawn to four authorities in particular: R v Adomako[1995] 1 AC 171;R v Singh[1999] CLR 582; R v Misra[2004] EWCA Crim 2375;and R v Yaqoob[2005] EWCA Crim 2169. Adomakoexplains the history and development of the offence of gross negligence manslaughter. Singhemphasises that “the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death.” In Misrathe Court of Appeal stressed that the jury had to consider whether the breach of duty should be characterised as gross negligence and was consequently criminal. In the same case they expressly endorsed that element of the trial judge’s summing up which said “…mistakes, even very serious mistakes and errors of judgment, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed.” Yaqoob is authority for the proposition that it is the serious risk to life that matters, not more general considerations of safety.

When this case was opened, Mr Robert Smith QC and Mr Jason Pitter for the Crown identified 5 steps which the jury had to take in order to reach a verdict of gross negligence manslaughter. Those 5 steps were stated as follows:

“ First, that she owed a duty of care to Lydia Bishop; and

•

Second, that she was responsible for omissions or [expressing it another way] failure to act, which amounted to a breach of that duty of care; and

•

Third, that her breach of duty in that regard caused or made a significant contribution to the death of Lydia Bishop; and

•

Fourth, in the event that you are satisfied that it has been proved by the prosecution that the death of Lydia Bishop was caused or was significantly contributed to by Sophee Redhead’s breach of duty, the prosecution must satisfy you that a reasonably prudent person would conclude that in all the circumstances an obvious and serious risk to the life of Lydia [that is, an obvious and serious risk of ‘death’] was thereby created by Sophee Redhead.

•

Fifth, and finally, if each one of these four matters is proved by the Prosecution so that you are sure of them, it would nevertheless then still be necessary for you to consider whether the acts and omissions for which Sophee Redhead was responsible involved such a high degree of negligence that her conduct should be categorized by you as criminal. In order for you to reach that conclusion the Prosecution must have made you sure that her breach of duty was, in all the circumstances, so reprehensible and that it fell so far below the standards to be expected of an Early Years Practitioner in such a nursery with her qualifications and experience and in her position that it would consequently amount to a crime.”

On behalf of Ms Redhead, Mr Alistair MacDonald QC and Mr Dominic Kay expressly agree with those 5 steps. Accordingly, for the purposes of this application, I am content to accept them. Indeed, I note that those steps are very similar to those identified by HHJ Gilbart QC, then the Recorder of Manchester, in his ruling in R v Palliser (T 2011 7411).

The Evidence

I have considered all of the evidence adduced during the first 10 days of this trial. I set out below the evidence concerning the background, and some of what might be regarded as the significant evidence in support of the Prosecution case. I do that because that is the task required by Galbraith. I emphasise, of course, that if this matter were to go to a jury, any views I may have as to the relative strengths and weaknesses of the Crown’s case will be entirely irrelevant.

The nursery had a large ‘L’ shaped playground onto which all of its 3 rooms looked out. The children, particularly those aged from 2 to 5, were given a considerable amount of freedom, in that the doors from the rooms onto the playground were kept open for most of the day and were only closed at the start of the day, at lunchtime and for a period later in the afternoon. Otherwise, if the weather allowed, they could go outside whenever they wanted. This was called ‘free flow’ and it plainly imposed onerous supervision obligations on the staff.

Lydia Bishop was 3 years old and in the Buccaneers Room, for children aged from 3 to 5. The mandatory requirements relating to supervision and staff/child ratios were set out at paragraphs 3.27 onwards of the EYFS:

“Staff: Child ratios

3.27

Staffing arrangements must meet the needs of all children and ensure their safety. Providers must ensure that children are adequately supervised and decide how to deploy staff to ensure children’s needs are met. Providers must inform parents and /or carers about staff deployment, and, when relevant and practical, aim to involve them in these decisions. Children must usually be within sight and hearing of staff and always within sight or hearing.

…

3.33

For children aged three and over at any time in registered early years provision operating outside the hours of 8 am and 4 pm, and between the hours of 8 am and 4 pm when a person with Qualified Teacher Status, Early Years Professional Status or another full and relevant level 6 qualification, is not working directly with the children:

•

there must be at least one member of staff for every eight children;

•

at least one member of staff must hold a full and relevant level 3 qualification;

•

at least half of all other staff must hold a full and relevant level 2 qualification.”

There has been a good deal of reference to the 1 in 8 ratio during the trial, but as I have already stressed, that is a minimum requirement and does not derogate from York College’s principal obligation that staffing arrangements must ensure the safety of the children. This may be an important factor in this case because, with children regularly going inside and outside, either singly or in groups, endeavouring to keep the ratios and ensuring the safety of the children was not a straightforward task. This was compounded by the fact that the Investigators (the children from 2 to 3) also had access to the playground from their separate room, with their own staff. Shared responsibility between the staff outside was inevitable but also complicated the question of precisely which members of staff were responsible for which (and how many) children.

More importantly still, these overall arrangements may be said to be suffered from two particular problems. The first was the location of the slide, the largest piece of fixed play equipment. The slide was located right at the top of the L shape at the furthest point from the children’s rooms and out of sight from most of the main part of the playground. Even with a supervisor standing in the angle of the L, he or she would be some way from the slide itself and would not be able to see the far side of the mound on which the slide was located.

The problem with the remoteness of the slide was well known to the staff. There was considerable evidence that they endeavoured to prevent children from going to the slide unsupervised by repeatedly telling them not to, and by erecting a makeshift barrier across the path leading to the slide. The barrier was made up of a bench and a trolley consisting of sandpit toys. The evidence was plain that all staff knew that this barrier would not prevent, and did not prevent, the children from simply stepping round it on their way to the slide. Instead it was said that the bench and trolley merely acted as a visual sign that the slide was out of bounds.

On the face of it, it was curious that, although risk assessments were produced relating to other potentially harmful features of the playground, no one raised the possible inadequacy of this rather ramshackle arrangement. The evidence was that a fence and gate could have been provided and there would have been no funding difficulty if it had been identified as a matter of safety. The only evidence about the potential downside of a fenced gate was from Liz Radford, the Nursery Manager, who said that a child might get left behind and locked in when the slide area was cleared. Whilst that will ultimately be a matter for the jury to consider, speaking for myself I found that a wholly unconvincing answer.

The second specific complication that affected the supervision in the playground arose out of the use of rope/ropes in conjunction with the slide. There are photographs taken some months before the accident in which a long length of rope, in a similar position to its position on 17 September, can be seen on the slide. The evidence was that it was used in July 2012 as part of a pulley system to get buckets of water up the slide. There was other evidence that there was a long length of rope which was sometimes tied round the stanchions so as to allow the children to pull themselves up the mound. There was also evidence that this type of rope easily formed loops, and may not have conformed to the relevant British Standard.

York College was aware of the risk of ropes to the children in the nursery. There were 2 separate risk assessments which identified that the ropes posed a specific risk of strangulation to the children. The control measures which were identified included not only supervision, but putting the ropes away when not in use. The evidence was that these risk assessments were posted up in the nursery, although it is also plain that some of the supervisors were not specifically taken through them. Chloe Moses, one of the supervisors, for example, said she had never seen them. There is a separate dispute concerning the overall identification of the risk of strangulation as ‘moderate’, because the evidence suggests that this may have resulted from a failure properly to complete the risk assessment itself.

There was evidence that the ropes were seen as part of the play equipment and, as such, were put away at the end of the day, not at the end of each supervised period when the rope was in use. There was evidence to that effect from a number of the staff at the nursery, including Lindsay Harrison, Mathew Parkin, and Chloe Moses. Ms Redhead suggests the same in her statement to the police. That would not accord with the control measures. Further, there was evidence that, on occasions during the run-up to 17 September, the rope or ropes were not even put away at the end of the day.

There was evidence from Lindsay Harrison that there were 2 longer ropes being used in conjunction with the slide on two consecutive days in July 2012. They were not put away overnight. She thought they were dangerous (a view she passed on to another member of staff) and took them off the slide.

Laura Dickson, another supervisor, noticed similar ropes in the first part of September. She indicated that in the run up to 17 September the ropes just stayed where they were on the slide: in other words they were not put away at the end of supervised play. She agreed that this was a failure to comply with the risk assessments.

Support for the evidence that the long rope or ropes were not put away can be seen in the CCTV footage of 17 September which shows the long length of rope tied round the slide, extending down the mound and then trailed back onto the slide itself from 8:00am in the morning. Since that was a Monday morning, the obvious inference is that the rope had been left like that over the weekend, another indication that the control measures were simply not being implemented. Lindsay Harrison returned to work after her holiday on 17 September and said she was “disappointed” to see the rope back in place on the slide.

During the morning of 17 September, children can be seen getting to the slide area unsupervised. They can be seen stepping round the bench and trolley. There is one piece of footage which the jury may regard as particularly telling; it shows the bench parallel to the path (rather than across it) with a teacher getting up from the bench and going left at precisely the same time as a small child moves behind her and to the right towards the slide. Children play on the slide unsupervised during that morning. One of those children was Lydia Bishop. However, the periods of unsupervised play are relatively short and the children come back of their own motion or are retrieved by staff.

In the absence of the Buccaneers Room supervisor, the Second Defendant, Ms Redhead, was the most senior person working there that day. There is no evidence that she went outside at any stage during the morning.

At around 2:00pm, the door to the Buccaneers Room was open and Ms Redhead went outside. It is not clear which or precisely how many children went with her, but it may have been as many as half the total of 14. It appears that a child from the Investigator’s Room came up to her and was upset so she sat at a picnic table and comforted that child. The statement that she gave to the police on the day after the accident contains these two passages:

“I went outside and sat at a picnic bench while some children played with building bricks and others in the sandpit. From the picnic bench you can see down both the outside aspects of the building down which the play area goes. Down one of the sides of the building is the fenced off area for the baby room and beyond that is s slide. The fence for the baby room is quite short and the slide is on a mound and as such you can see the slide over the top of the fence. The position that I was sat on the picnic bench had me facing away from the slide and in a position that I could see both the sandpit and the building bricks. I have drawn a diagram to show a rough plan of the outside play area and where I was sat and which direction I was facing. I produce this as an exhibit under SAR/1. Although I was facing away from the slide, a single turn half way to my left would result in me being able to see it. At this time some of the Investigator’s were also outside. Due to this Dina TURNER was also outside. I have also marked Dina’s position on SAR/1. Also at this time I had one of the children, Molly, on my knee. Molly is from the Investigators Room. Molly came over as she wanted to give me a cuddle. Molly was on my knee for a couple of minutes before getting down. Either when Molly was on my knee or just after I saw Lydia BISHOP coming out but I saw she didn’t have anything on her feet and told her she had to put her shoes on. Approximately 4 to 5 minutes later Lydia has come out wearing her wellies. By this point I had another child on my knee. This was CT. He had been upset in the playground for some reason and I picked him up and put him on my knee where I sang songs to him trying to calm him down and stop him crying. I was still sat in the same position. Lydia has then come past me where I sat and went to the sand pit. Where she stayed for a short time before running off in the direction of the slide. There were no other children in that area near the slide.

…

After Lydia ran past me towards the slide I still had CT on my knee. Approximately 3 to 5 minutes after Lydia running past me Chloe MOSES popped her head outside and told me that Lydia hadn’t had her snack. By this time CT had stopped crying so I put him down and got up to go and get Lydia. I started walking towards the slide and shouted for Lydia to get her snack. I had no reply and I could see something on the slide but at this point didn’t realise what it was. I could see something white but didn’t realise straight away that it was a pair of trousers. As I got a little bit closer I could tell that it was Lydia on the slide. I could see her wellies and I immediately realised something was wrong. She was down the slide laying motionless and her head was approx 6 inches from the top. I started running over to the slide and as I got there I could see that a loop of rope was around her neck and that she was hanging from this down the slide.”

Other evidence relating to this then can be said as follows. Lindsay Harrison had her lunch break between 1:55pm and 2:25pm. When she got back to the Buccaneers Room, Chloe Moses, the other Buccaneers Room supervisor, mentioned that Lydia had not had her snack. When the toilets had been checked and it became apparent that Lydia was not inside anywhere, it appears that Chloe Moses became flustered. She went out to Ms Redhead to tell her that Lydia was not inside and Ms Redhead got up from the picnic table, shouted her name, and then went to the slide and found Lydia with her head in a loop of the rope part way down the slide. She was lifeless. Despite attempts to revive her, it seems clear that she had died on the slide as a result of the pressure from the ligature round her neck.

Duty/Breach/Causation

On behalf of Ms Redhead Mr MacDonald properly conceded that there was evidence on which a jury could find that she owed a duty to Lydia Bishop; that she was in breach of that duty; and that breach caused or materially contributed to Lydia’s death. Accordingly, for the purposes of this application, no issue arises under steps 1-3 set out in paragraph 6 above.

Serious and Obvious Risk of Death

This is step 4, referred to above. Leading counsel were agreed that this test, relating to the nature of the risk, was an entirely objective one.

Mr MacDonald submitted that:

In response, Mr Smith said that the evidence showed that, if a child was alone and unsupervised, with the loop of rope in the position shown in the photographs, there was a risk that a child could suffer fatal injury if its neck became ensnared in the loop. He said that was recognised by a number of witnesses and, perhaps more importantly, by the written risk assessments themselves. He said that Ms Redhead’s actual or presumed knowledge was irrelevant for step 4, although he accepted it was an important factor in any consideration of step 5.

Taking this last point first, I agree with Mr Smith. The issue at step 4 is not concerned with Ms Redhead’s actual or implied knowledge of the circumstances at the slide at the time that she saw Lydia Bishop running off in that direction. Step 4 requires an objective analysis of the risk created by the rope on the slide: whether a reasonably prudent person would conclude that the circumstances at the slide presented an obvious and serious risk of death. What she knew or ought to have known about the rope is immaterial for step 4, although it is relevant (and potentially very significant) in any analysis under step 5.

I consider that there is evidence that a reasonably prudent person would have concluded that the rope presented an obvious and serious risk of death. A number of witnesses (including Liz Radford, the nursery manager, and Laura Dickson) were shown the photograph of that loop of rope and confirmed that it posed a lethal risk, particularly if the children at the slide were unsupervised.

However, in my judgment, the best evidence of the obvious risk of death created by the loop of rope on the slide is the fact that that was the very risk which the risk assessments identified. It cannot be argued that a reasonably prudent person could not conclude that there was an obvious and serious risk of death by strangulation in circumstances where the evidence makes plain that death by strangulation had been identified in the risk assessments as being the very risk to children created by the rope.

This was confirmed by a number of the witnesses who dealt with their understanding of the risk before the 17 September: Liz Radford, the Nursery Manager, who said she was conscious of the fact that the ropes could lead to fatal strangulation; Laura Dickson, who said that she too was aware of the risk of strangulation; and Jill Corrigan, who had prepared the risk assessment to deal with that specific risk.

During the course of his oral and written submissions, Mr MacDonald emphasised that there was considerable evidence that no teacher or supervisor at the nursery had ever seen a loop like that on the slide and that, therefore, no reasonably prudent person would have regarded it as a risk. I accept that there was a good deal of such evidence, which he can deploy in his speech to the jury, but in my view, the jury are not bound to accept that, because it had not happened before, strangulation by a loop of rope was not a real risk. After all, it may be said that the whole point of having written risk assessments is that potentially life-threatening circumstances, rightly identified in those assessments, are not allowed to arise in the first place.

In addition, I am in no doubt that there will be many other points open to Mr MacDonald and Mr Kay which may persuade the jury that, in all the circumstances, the loop was not an obvious and serious risk of death. But I have to take the Crown’s case at its highest for the purposes of this application and, for the reasons which I have given, it seems to me that, on all the evidence, there is a case to answer on step 4.

‘So Reprehensible’

This, of course, relates to step 5. It is on any view a high hurdle for the Prosecution to overcome. It doubtless explains why, in many cases of gross negligence manslaughter, applications of no case to answer have been made, although I note that the two rulings which were helpfully drawn to my attention, (Palliser, referred to above, and MacKay J’s ruling in the Hatfield train crash case) were both cases where the defendants had no physical proximity to the accident. That is not the case here.

Mr MacDonald argues that, at its highest, Ms Redhead may have made an error of judgment but that, in all the circumstances, that could not amount to manslaughter. In this regard he relies on Misra (paragraph 5 above). There are four matters in particular on which he relies: the supervision at the time; the lack of evidence that Ms Redhead knew or ought to have know about the rope at the slide; the evidence of her character; and the evidence about the alleged failings in the York College system of health and safety at the nursery.

Mr Smith maintains that step 5 is supremely a matter for the jury and points to two matters in particular, namely the length of time Lydia was unsupervised at the slide and the inference from the available evidence that Ms Redhead knew or ought to have known that a rope was likely to be attached to the slide.

I deal first with the issue of supervision. I agree with Mr MacDonald that, on one view, based on her account in her statement, the most that could be said against Ms Redhead was that she allowed herself to be distracted by the crying child and momentarily forgot about Lydia heading to the slide. On that basis, of course, whilst a breach of duty, it might be difficult or even impossible to say that her breach was so gross as to amount to a criminal offence.

But there is one critical piece of evidence relating to this aspect of the case which could suggest otherwise. That relates to the timings on the CCTV footage. Those timings show Lydia Bishop climbing the steps of the slide and just starting to slide down at 2:06pm. Although the camera is panning away from the slide, there is no sign of Lydia appearing at the bottom a few seconds later. The inference is that it was at that moment that her head was caught by the loop in the rope.

Ms Redhead is seen running towards the slide at 2:26pm. That is consistent with Lindsay Harrison’s evidence that it was immediately following her return from her lunch break that there were concerns about Lydia’s whereabouts which were almost immediately actioned. Accordingly, on the basis of the times on the footage, there was a 20 minute period between Lydia going past Ms Redhead on her way to the slide (in accordance with her witness statement) and the discovery of her body. Furthermore, although the pathologist made clear that this was a rough estimate; his conclusion was that Lydia would not have died had she been rescued after a few minutes, and that her death would not have occurred until about 10 minutes or so.

In my view, this 20 minute period could be regarded by the jury as much too long in any circumstances, given that Ms Redhead knew that Lydia could easily have got past the barrier and would therefore be unsupervised at the slide. They may therefore consider that this long period should be regarded as gross negligence; they could equally well conclude that, in all the circumstances, it was no more than an error of judgment. It is not for me to prevent them from deciding that issue on the evidence.

I turn therefore to the second issue under step 5, namely whether Ms Redhead knew or ought to have known about the presence of the rope. In my judgment there is evidence from which the jury could infer that she knew or ought to have known that it was likely that a rope would be attached to the slide. I refer in particular to the evidence set out in paragraphs 17 to 19 above which suggests at the very least a regular practice of not putting the ropes away at the end of each period of supervised play.

Furthermore, to the extent that there will be a debate about whether Ms Redhead should have known about the rope, there was evidence that the College had a separate Outdoor Play policy which required that “before letting children play outside a brief risk assessment will be carried out”. It is therefore arguable that Ms Redhead should have checked the playground – including the slide – before allowing the children from the Buccaneers Room outside at 2:00pm. If she had done that, she would have seen the loop in the rope and almost certainly would have removed it.

Finally, I deal briefly with the other two matters on which Mr MacDonald relied. Evidence of Ms Redhead’s character may be important but could not of itself justify the submission of no case on step 5. And whilst I agree that the alleged reprehensibility of Miss Redhead’s conduct will have to be considered in the context of a health and safety/risk assessment system at York College which may be open to considerable criticism (paragraphs 9-16 above), any failings in their system would not be sufficient, on their own, to warrant a submission of no case to answer by Ms Redhead. Those will all be matters which ought properly to be considered by the jury.

Drawing those strands together, the Crown’s case on step 5 at its highest is that Ms Redhead knew that Lydia Bishop was on her first full day at the nursery; knew that Lydia had gone towards the slide where the trolley/bench barrier would not prevent her from getting to the slide; knew that no other Buccaneers Room supervisors were outside; knew that the slide was unsupervised (a finding open to the jury, as Mr MacDonald accepts); and did nothing for 20 minutes, in circumstances where she knew or ought to have known that it was likely that a rope was on the slide. It seems to me that a jury, properly directed, could find that this amounted to gross negligence. Again I accept that Mr MacDonald and Mr Kay will be able to point to a whole range of factors which could lead a jury to a different conclusion, not least the alleged systemic health and safety failings to which I have already referred, and the presence of Ms Dina Turner, a member of the Investigators Room staff who was on the pathway a little closer to the slide, although still some distance from it. But for the reasons I have given, I consider that there is a case to answer on step 5.

For all these reasons, therefore, I refuse this application to dismiss the charge of gross negligence manslaughter against Ms Redhead.