Neutral Citation Number: [2014] EWCA Crim 1522
Case No:  IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
His Honour Judge Hale
T20120634
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/07/2014
Before :

LORD JUSTICE FULFORD
MR JUSTICE FOSKETT
and
HIS HONOUR JUDGE NEIL FORD QC, RECORDER OF BRISTOL
(sitting as an additional judge of the Court of Appeal Criminal Division)

- - - - - - - - - - - - - - - - - - - - -
Between:

	Polyflor Ltd
	Appellant	
	- and –
		
	Health and Safety Executive	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

John Cooper QC (instructed by BLM Solicitors) for the Appellant
Nigel Lawrence QC for the Respondent

Hearing date: 8 July 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Foskett: 
1.	On 28 February 2013 at Manchester Crown Court, after a trial lasting 4 days before His Honour Judge Hale and a jury, the applicant company was convicted unanimously of one offence of failing so far as reasonably practicable to ensure the health and safety of its employees contrary to section 33(1)(a) of the Health and Safety at Work, etc, Act 1974 (‘the 1974 Act’).  The applicant was fined £7,500 and ordered to pay £34,000 by way of costs.
2.	At the close of the prosecution case, a submission of no case to answer was made on behalf of the Applicant.  It was rejected by the judge and, as we have indicated, in due course the jury convicted the Applicant.  The sole proposed ground of appeal against conviction is that the judge should have acceded to the submission of no case.  It is contended that there was no evidence of a breach of duty by the Applicant and the case should not have been left to the jury.
3.	The Applicant renews its application for leave to appeal against conviction after refusal by the single judge.  Whilst, for the reasons we will give, we do not consider that the challenge to the judge’s decision should succeed, we are of the view that the appeal raises an arguable issue and, accordingly, grant leave to appeal.  We are reinforced in that latter view by the fact that, as the transcript demonstrates, the trial judge did not see the merits of the case as necessarily pointing in only one direction: indeed he observed at one stage that “the merits are all with the defence”.  Henceforth the Applicant will be referred to as ‘the Appellant’.
4.	The Appellant is a manufacturer and producer of commercial and domestic vinyl floor covering. It employs 350 people at its premises in Whitefield, Manchester.  Those employees included Mr Andrew Printy.  At the material time he was employed as a Technical Support Engineer. His duties included managing the craftsmen, attending on breakdowns and dealing where necessary with a wide variety of machines used in the course of the Appellant’s manufacturing processes. 
5.	On 17 May 2011, whilst undertaking maintenance activities on a “granulator infeed conveyor” (commonly known on the site as a “hugging conveyor”), Mr Printy suffered a fractured arm and as a result was off work for 7 weeks.  It was that incident, against the background of what had occurred previously in 2007, which led to the prosecution of the Appellant by the Respondent.
6.	We cannot do justice to the appeal without describing the nature of the machine and the background to what occurred to Mr Printy. We understand the purpose of the machine is to assist in the recycling of unused vinyl products.  Vinyl material that is fed into the hugging conveyor is sandwiched between two conveyor belts which run together to create a nip (rather like a mangle) and which then carry the material upwards to the granulator at the top of the machine.  Once granulated the material is fed through a suction pipe to a part of the machine colloquially referred to as “the wardrobe” which then rounds the material up into neat pieces and the material is then sucked into the bagging section.  The judge described the process as follows in his ruling on the “no case” submission:
“What happens is that vinyl in a solid strip emerges from the water buff … and feeds automatically into the gap [in] the main … machine, which is held between two moving conveyor belts from a bottom roller and fed upwards to a top roller, which feeds the vinyl into a granulator.”  
7.	A schematic diagram prepared for the jury’s assistance shows the configuration of the conveyor belts and demonstrates clearly that once the material has reached the entrance to the granulator itself there is a sharp bend before the material is fed (or drops) down into the granulator.  Apparently, it was a not infrequent occurrence that the vinyl material would become jammed at this point and the machine would stop operating.
8.	As will become apparent from the description that follows, access to the rollers is ordinarily prevented during normal operation by certain guards that are in place.  
9.	What happened in the situation where a blockage occurs was described clearly by the judge in his ruling and we borrow substantially from what he said:
“... Blockages tend to occur at the upper roller.  The machine stops, and the blockage is manually cleared.  That may or may not require guards to be removed; it depends on the extent of the blockage.  That process of unblocking the machine, whether the guards are on or off, itself causes no hazard as the power is switched off, and there are no dangerous parts in the machine such as blades, that when switched off can cause any risk whatsoever.
However, once unblocked and otherwise ready to be restarted, it is necessary to check that the two belts have not been forced out of alignment.  Severe blockages might also require the engineer to slacken the tension of the belt at the top or the bottom roller, and the tension needs to be reapplied and the alignment also rechecked, so that the belts can be properly aligned in a way central to the rollers. Tensioning and the tracking of the belt is achieved by two sets of screw threads on bolts, one paired to the top roller and one paired to the bottom.
It is the process of tensioning and alignment that give rise to this prosecution.  In 2007 an engineer, Mr. Manchester, was injured in the course of performing that task.  Up until shortly after his accident in 2007, the two pairs of adjusting bolts were inaccessible without the removal of guards covering the rollers.  As it is necessary to see the belts running to check the adjustment, the machine had to be operated without guards and without vinyl, but there was no way of adjusting the alignment at that stage, without removing the guards.  The danger was the bottom roller, in that the point came where the two belts came together at a roller … where there is a nip, and it is extremely easy for one's hand or arm to be drawn in under that roller and crushed.”
10.	The judge described what happened to Mr Manchester and drew a distinction between what occurred to him and what happened to Mr Printy.  What happened to Mr Manchester did not occur, he observed, “in the scope of adjustment following a blockage”, but in the context of gaining access to and fixing an internal bar just forward of the bottom roller, the screw attachment to which had become detached.  As a result the bottom roller had to be removed in order to gain access to the broken part.  The judge recorded correctly that “the accident to Mr. Manchester is relied on by the prosecution, to the extent it forms a background to subsequent events, and made it clear to the company the dangers inherent in allowing the machine to be switched on unguarded.”  Indeed, as he went on to describe, the arrangements were changed after Mr Manchester’s accident:
“However, it did lead to a total reassessment of the machine.  Mr. Manchester himself was asked to make the suggestions and he did, and most of them were substantially adopted. The main effect was to allow for adjustments to tracking and alignment to be achieved without removing any guards …. Metal was cut away to allow access to the two pairs of tensioning bolts.  Mesh viewing points were installed at the bottom, top and side of the parts of the belt, which allowed a degree of visibility as to the alignment of the belts.  
One thing that was not done was to put a plastic screen where one is now to be found, so that an operator could in the area of the bottom roller, look straight down on to the belts.  That has now been done.  We have heard as yet no evidence why that was not done in 2007.  It is said by the prosecution expert, Mr. Marr, that the view of the belt from above is the most helpful guide to adjusting the belts into alignment.
We have heard evidence that the operator's considered best view is available at the upper roller.  It is normally … a two man job to adjust this machine, one person being at the top of the machine by the top roller, adjusting that.  They have a view on to the belt and they have a good view down the belt, according to the employees.  So adjustment of the top roller by the man at the top on the viewing platform, and adjustment of the bottom set of pair of bolts by the person at the bottom, who has a less good view, because at the stage of Mr. Printy's accident, he could not look straight down on to the belt, but could look at it from the side.”
11.	It follows, therefore, that following the accident in 2007 visibility to the areas described was improved by replacing solid metal on parts of the machine with metal meshing although the plastic screen mentioned above was not put in place. The idea was obviously to reduce the need to remove the guarding.
12.	The judge then went on to describe the events surrounding Mr Printy’s accident.  Mr Printy, we should say, was an experienced technician who had worked for the Appellant at Whitefield for about 20 years.  The judge expressed himself as follows:
“On the evening of Mr. Printy's accident … the machine became blocked.  The two craftsmen, Mr. Anderson and Mr. Bailey, attended and unblocked the machine.  It was a bad blockage at the top roller.  Vinyl had gone around the belt at the top roller, and had disturbed the top roller's alignment.  Mr. Anderson [gave evidence that] the machine needed tracking after the blockage had been removed, because of the disturbance to the top roller.  They had not finished tracking when the time pager brought Mr. Printy, the craftsman in charge that night, to the scene.  Mr. Printy's evidence was that Mr. Bailey was saying he was having trouble tracking the bottom belt, and that he needed to move the bottom guard to track the bottom roller. 
Mr. Printy then raised a permit to work, seeking permission to run the machine without guards for tracking ….  Mr. Sarros, the man in charge of the operation of the whole produce line that night, gave permission.  The permit … gave no safety advice, nor did it indicate what precautions, if any, were to be undertaken.  The tracking with the guards off was substantially completed without incident.  It was in reality a question of observing the running of the belt.  However, there came a point when Mr. Printy says he heard rubbing of the belt, and wanted to see if he could find out where it was rubbing, the suggestion being that the distorted roller at the top had may be stretched the belt in some way.  He says "I got a spanner.  I sped up the belt.  I put the spanner on the belt, pushing the spanner into the point where it was rubbing, and it caught and went in the machine."  He could not let go of the spanner in time, as he thought he would be able to, and he broke his arm.” 
13.	We should interpose by saying that unfortunately the craftsman called Bailey had died before the trial and, accordingly, only a statement from him was available for the trial.  His statement suggested that removal of the guards took place regularly after Mr Manchester’s accident, but the judge considered that there were aspects of that statement that were “very unsatisfactory” and was not prepared to attach weight to it for the purposes of assessing the prosecution case at the point of the submission of no case.
14.	We should also record at this point a little of the evidence given by Mr Printy because it is something upon which Mr John Cooper QC, for the Appellant, places considerable reliance.  Mr Printy accepted that what he did was foolish.  In examination-in-chief he said this:
"When we were altering the position of the rollers which allows it to track over, it wasn't affecting the conveyor belt, so foolishly I sped the machine up and I could hear where it was rubbing, so I said to Pat, "Its rubbing here", so I've one of his spanners and I've tried to push at the point where I thought it was rubbing, and then my hand got caught in the machine."
15.	In cross-examination he accepted that he had been blasé that day:
"... I was trying to relieve the point where it was rubbing, and it got pulled ... I had hold of the spanner with the intention ...
Q: Yes
A: ... if it gets pulled into the nip I can let go of it
Q:  Right. Yes, exactly.
A: And before I knew it my hand got pulled in with the ... it all happened a bit quick because ...
Q:	 Looking back on it, you took the risk, didn't you? You thought that if it got pulled in you could just let go …
A:  Yes, I did, I took the risk, yes ..."
16.	Mr Cooper also relied upon the evidence of the expert for the prosecution, Mr Marr, who, in response to a question from the judge, said “[at] the end of the day, if someone's going to do something stupid you cannot stop them.”
17.	Mr Cooper’s argument at the trial, and indeed before us, was that this evidence did not support the Prosecution's case (i) that the accident was caused by the Appellant’s breach of duty and (ii) that the nature of the accident was proof of the existence of a risk attributable to the system of work.  We will return to that argument in due course after completing reference to what the judge said about the evidence.  Referring to what Mr Printy said, the judge said this:
“I must … turn now to Mr. Printy's accident.  Does that provide evidence upon which a jury could convict?  Mr. Printy frankly accepts that it was blasé on his part to do what he did in putting that spanner on to the belt.  There was no need for the belt to be moving to see if it had stretched and therefore perhaps needed replacing.  He accepted it was a silly thing for him to do, but equally as [the expert for the prosecution] said, at the end of the day if someone is going to do a silly thing, you cannot stop them.”
18.	In responding to the submission of no case the judge noted that he had been referred to R v Tangerine Confectionary Ltd & Veolia ES (UK) Ltd [2011] EWCA Crim 2015 in which reference was made to Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003.  He quoted part of paragraph 36 of the judgment of Hughes LJ, as he then was, in Tangerine Confectionary as follows:
“The conclusion which we draw is that Baker does apply to sections 2 and 3 of the HSWA.  Foreseeability of risk (strictly foreseeability of danger) is indeed relevant to the question whether a risk to safety exists.  That accords with the ordinary meaning of risk, as is demonstrated by the concept of a risk assessment, which is itself an exercise in foresight.  Whether a material risk exists or does not is, in these cases, a jury question and the foreseeability (or lack of it) of some danger or injury is a part of the enquiry.  None of this, however, means that in a prosecution under either section it is incumbent on the Crown to prove that the accident which occurred was foreseeable.  That would convert the sections into ones creating offences of failing to take reasonable care to avoid a specific incident. It means no more than that the sections are concerned with exposure to risk of injury, and that the extent to which injury is foreseeable is part of the enquiry into the level of risk.  The sections do not command an enquiry into the likelihood (or foreseeability) of the events which have in fact occurred.  They command an enquiry into the possibility of injury.  They are not limited, in the risks to which they apply, to risks which are obvious. They impose, in effect, a duty on employers to think deliberately about things which are not obvious.”
19.	The judge then said this, addressing the issues in the instant case:
“I have also got to bear in mind whether the risk is trivial or fanciful.  What was the risk?  The risk is that when operated without a guard, is there a risk of someone inserting something into the machine?  It may be totally unwise, unnecessary and obviously stupid, but is there a risk?  The only answer I can come to is yes.  It may well be a risk that it is impossible to avoid, but that cannot stop the case at this stage.  It was a risk, because it had happened with Mr. Manchester.  It had happened with Mr. Printy.  There is a risk that someone will be stupid enough or unwise enough to either put something in or allow some part of their clothing to fall into this machine when it is moving.  Whether or not it is a risk that can be guarded against is another matter, and whether it is reasonably practicable other than by saying to people do not touch the machine when it is operating, because when it has to be operated without a guard, there is no need to touch any of the moving parts.  The only parts that need to be touched are the screw threads, which are not moving in that context.  What is required is observation, not adjustment of any of the moving belt or rollers.”
20.	His attention was drawn by the prosecution to another passage in the Tangerine Confectionary case where, at paragraph 42 responding to a submission of Mr Cooper in that case to the effect that there was on the facts no foreseeable risk, Hughes LJ said this:
“We have no hesitation in rejecting that argument.  The risk of operatives, even experienced operatives, for some reason, good or bad, departing from de facto procedures in the vicinity of potentially dangerous machinery, especially in situations which are oft repeated, is a classic one.  That is why an assessment of the risk ought to be made.”  
21.	On that basis the judge concluded that there was a case to answer, the existence of risk arising from the unguarded use of the machine.
22.	Mr Cooper submits that the passage quoted in paragraph 20 above demonstrates that the judge applied the wrong test. He submits that the passage from the Tangerine Confectionary case is not authority for the proposition that the existence of a risk in a work process that someone may do something stupid or unwise is sufficient to satisfy the Galbraith test. Any work process or system of work, he contends, carries with it the risk that an employee may do something stupid, but that does not render the system unsafe itself.  He also contends that the existence of an accident will not of itself be sufficient reason for a case to go to a jury.
23.	Whilst we accept that, as it stands, the final sentence of the preceding paragraph is, to some measure, borne out by paragraph 14 of the judgment in the Tangerine Confectionary case (which is where the authoritative proposition of law is to be found), but, for reasons which will appear, we do not think that the judge acted on such a premise nor do we think that the other criticisms of the judge’s ruling advanced by Mr Cooper are made out.  
24.	Mr Cooper drew attention to what Lord Mance said in Baker v Quantum Clothing Group Ltd at [66] as follows:
“The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 , was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2009] 1 WLR 1. Lord Hope of Craighead, with whose speech all other members of the House agreed, said that the legislation was “not contemplating risks that are trivial or fanciful”, that the statutory framework was “intended to be a constructive one, not excessively burdensome”, that the law “does not aim to create an environment that is entirely risk free” and that the word “risk” which the statute uses “is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against”: see para 27.”
25.	Mr Cooper suggested that the circumstances in the present case do not meet the threshold set in that case and contends that there was not a material risk to health and safety.
26.	He also drew attention to what Lord Dyson said in the same case at [121]:
“… in my view, the foreseeability of a risk is distinct from the question whether it was “reasonably practicable” to avoid it. Diplock LJ explained the point in Taylor v Coalite Oils & Chemicals Ltd 3 KIR 315, 319–320 in the passage quoted by Lord Mance JSC at para 71 above. It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk. Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable.”  
27.	Finally, he referred to R v Porter [2008] EWCA Crim 1271, which was a case involving an accident at a school.  He relied upon the following paragraphs from the judgment of Moses LJ:
 “21. We acknowledge that the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which a defendant might take, rather than the risk to safety. But that is not exclusively so. As we have said, that the risk is part of the everyday incidence of life goes to the issue as to whether an injured person was exposed to risk. Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question. The judge fairly put that to the jury in his summing-up: He said: 
“What you must decide is whether there was an unacceptable risk. The trivial risks of everyday life are not unacceptable. They are simply a fact of life, are they not?”
22. Unless it can be said that this child was exposed to a real risk by the conduct of the school, no question of the reasonable practicability of measures designed to avoid that risk arises. No one in this case has suggested that every playground up and down the country for every 3–4 year old must have a flat surface and nothing from which an infant can choose to jump.”
28.	The thrust of his submissions, based upon these passages, is that no material risk was established on the evidence at the close of the prosecution case and that, accordingly, it should not have been left to the jury.  In essence, he contends that a risk would only materialise if an employee did something very foolish (which Mr Printy accepted he did) and that is not sufficient for these purposes.
29.	Mr Nigel Lawrence QC, who appeared before us on the appeal, submitted that for the case to go to the jury, the prosecution had only to adduce some evidence of exposure to risk – in other words, some evidence that an employee was, or employees were, exposed to a possibility of danger. Once that is established the onus shifts to the Appellant to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employee was, or its employees were, not exposed to such risk (see R v. Chargot [2008] UKHL 73 at [21]).  He submits that the prosecution does not have to prove that a particular accident was foreseeable and equally says that causation is not an element of an offence under section 2(1): see paragraphs 36 and 29 respectively of the judgment in the Tangerine Confectionary case.
30.	In our judgment, that does represent an accurate summary of the law.  Furthermore, as the observations of Hughes LJ, quoted in paragraph 20 above, demonstrate, the creation of a material risk by the carelessness (including gross carelessness) of an employee remains a material risk for this purpose. 
31.	He made a number of points about the evidence, suggesting that it demonstrated the open acceptance on the part of the Appellant that there was a risk of danger from the unguarded operation of the hugging conveyor.  However, the most telling point from the perspective of the arguments advanced by Mr Cooper, in our view, was the simple proposition that any machine with moving parts has to be guarded because of the material risks to health and safety to which exposure to such moving parts may give rise. In this case the guards otherwise normally on the hugging conveyor were removed so that a maintenance operation could be performed whilst the machine was still in operation. In this situation employees were exposed to a clear, obvious and material risk to their health and safety – and, we might add, to the consequences of their own carelessness or indeed their foolishness.  The running of the hugging conveyor with its guarding removed was permitted by the Appellant under a permit to work system such that there was in place a system whereby employees were exposed to a clear risk to their health and safety. Mr Lawrence says that this is sufficient for the evidential threshold to be met.  Harsh though in the circumstances it may seem, we agree with this analysis.  All, of course, is not lost from the employer’s point of view in such a situation if the defence of reasonable practicability can be established.  However, that is an area entered once the prosecution has surmounted the first evidential threshold.  In our judgment, the judge was right (albeit maybe reluctantly) to conclude that the threshold had been crossed.
32.	In the present case the Appellant chose not to adduce any evidence to demonstrate that it had done all that was reasonably practicable to obviate the risk that arose, preferring to rely upon answers obtained within the prosecution case.  That, of course, is an entirely justifiable forensic approach to take, but we venture to suggest that a jury is more likely to be persuaded that an employer has probably done all that could reasonably have been done to obviate an obvious risk if it adduces a positive case that other options have been considered, but for whatever reason none has been considered reasonably practicable.  It will then be for the jury to evaluate that evidence.
33.	However, for the reasons we have given, this appeal must be dismissed