P, R. v

For neglect under section 37(1) of the Health and Safety at Work Act 1974, actual knowledge of the facts giving rise to the company’s breach is not an essential element. The statutory alternatives of consent, connivance and neglect remain distinct.

The question is whether a company officer, having regard to the functions of the office and all the circumstances, failed to take preventative steps which the officer could and should have taken. Neglect may be established where circumstances ought to have put the officer on enquiry about the need for action. Whether the evidence is sufficient is ordinarily assessed at the conclusion of the prosecution case.

The prosecution appealed, with the trial judge’s leave, from a preliminary ruling at a preparatory hearing. The indictment alleged that P Limited had committed health and safety offences arising from a fatal accident involving fork-lift trucks at docks. It also alleged that the company’s managing director was liable under section 37(1) of the Health and Safety at Work Act 1974 because the company’s breaches resulted from his consent, connivance or neglect.

The judge ruled that, where neglect was relied on, the prosecution had to prove that the managing director had a duty to inform himself and did know the material facts. The prosecution challenged only that requirement. The central issue was whether actual knowledge was necessary to establish neglect.

1. The prosecution appeal was allowed in part. The preliminary ruling wrongly required proof that the managing director actually knew the material facts giving rise to the company’s breach.

2. Section 37(1) of the Health and Safety at Work Act 1974 imposes ancillary liability on specified company officers where the company has committed the relevant primary offence through their consent, connivance or neglect. Those alternatives have distinct meanings. Neglect is not confined to a deliberate decision to avoid knowledge, which would improperly equate it with connivance.

3. The court adopted the guidance in Wotherspoon v HM Advocate [1978] JC 74. The inquiry is whether the officer failed to take a step to prevent the company’s offence which fell, expressly or impliedly, within the functions of that office and which the officer could and should have taken. The officer’s knowledge, or a state of affairs of which the officer ought to have been aware, forms part of the factual assessment.

4. Accordingly, in the absence of actual knowledge, surrounding circumstances may have put the officer on enquiry and required steps to establish whether proper safety procedures were in place. The prosecution may nevertheless need to prove actual knowledge on the evidence of a particular case. Whether there is a case to answer is to be determined at the end of the prosecution case, rather than by a prescriptive preliminary direction.

5. With the words requiring that the officer “did know” the material facts removed, the judge’s direction was appropriate on the known facts.

• Court of Appeal (Criminal Division) — allowed the prosecution’s appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996 to the limited extent of removing the requirement for actual knowledge from the preliminary ruling.
• Trial judge — at a preparatory hearing, ruled that neglect required proof that the managing director had a duty to inform himself and did know the material facts. No citation was stated.