Kelly & Anor v R

A conviction is unsafe where the prosecution has not provided an adequate evidential basis for the critical factual preconditions of guilt. In particular, where liability depends upon the unsafe condition of equipment and the defendant’s actual or imputable knowledge of it, the absence of reliable evidence on those matters may leave the appellate court unable to regard the verdict as safe.

A failure to preserve relevant evidence does not necessarily require the trial judge to withdraw the case from the jury if there is evidence capable of supporting the allegation. Its effect may instead bear on the safety of a conviction, especially where the summing-up does not focus the jury on the essential factual issues.

The appellants were convicted at the Crown Court at Truro after a four-year-old boy fell through a manhole cover into a septic tank in a field owned by the operator of a caravan site. The first appellant, the site manager, was convicted of gross negligence manslaughter. The second appellant, a company director responsible overall for health and safety, was convicted under the Health and Safety at Work Act 1974.

The prosecution alleged that the cover was insecure and that each appellant knew, or should have known, of the danger. Following the accident, remedial work was carried out before the condition and fit of the cover and manhole rim had been properly examined. The appeals challenged both the refusal of submissions of no case to answer and the safety of the convictions.

1. Appeals allowed; convictions quashed. The court was not satisfied that either conviction was safe.
2. The trial judge had been entitled to reject the submissions of no case to answer. Taken at its highest, the prosecution evidence from several sources raised a case for both appellants to answer concerning the condition and seating of the cover, and what they knew or should have known about it.
3. That conclusion did not resolve the separate question of safety. The adequacy of the cover’s seating immediately before the accident, and either appellant’s actual or reasonably imputable knowledge of any insecurity, were the critical preconditions of guilt. The evidence on both matters was sparse because the scene and potential exhibits were not preserved or properly examined before remedial work altered the site.
4. The judge had identified those matters in her rulings at the close of the prosecution case and in her sentencing remarks. However, her directions on the particulars of the offences did not require the jury to concentrate on them as essential issues. The court considered that a direction in those terms would, or should, have affected the verdicts.
5. As to the second appellant, liability under section 37 of the Health and Safety at Work Act 1974 required proof that the company’s offence was attributable to his neglect. The prosecution case depended on showing that, during his risk-assessment visit, he should have lifted and checked apparently sound covers and rims. The evidential deficiency also rendered that conviction unsafe.
6. The complaint about the direction under section 35 of the Criminal Justice and Public Order Act 1994 added little. The judge had indicated that the jury should draw no adverse inference from either appellant’s decision not to give evidence.

• Court of Appeal (Criminal Division). Allowed both appeals against conviction and quashed the convictions.
• Crown Court at Truro. On 30 July 2003, Kelly was convicted of gross negligence manslaughter and Frear was convicted of an offence under sections 33(1)(a) and 37(1) of the Health and Safety at Work Act 1974.