Porter, R. v

For an offence under section 3 of the Health and Safety at Work Act 1974, the prosecution must first prove a real risk to health or safety arising from the conduct of the undertaking. A fanciful or hypothetical possibility does not suffice.

The real-risk inquiry is fact-sensitive. Relevant indicators include the history of comparable accidents, the frequency of the activity, the condition of the alleged hazard, and whether the event is an ordinary incident of everyday life. If no real statutory risk is proved, the issue of reasonably practicable precautions does not arise.

The appellant, the headmaster of a private school, was convicted at Mold Crown Court of breaching section 3(1) of the Health and Safety at Work Act 1974. A three-year-old pupil had fallen after jumping from steps in a school playground and later died from an unrelated hospital-acquired infection.

The prosecution alleged that unsupervised access to the steps exposed the child to a risk to safety. The school had operated for many years without an accident on those steps. The appellant relied on the safety record, the ordinary nature and sound construction of the steps, and expert evidence that no enforcement action was warranted.

The appeal concerned whether the evidence could establish a real statutory risk created by the conduct of the school, and consequently whether the conviction was safe.

1. Appeal allowed; conviction quashed. The verdict was unsafe because there was no evidence on which a properly directed jury could reasonably find that the child had been exposed, by the conduct of the school, to a risk of the kind required by section 3 of the Health and Safety at Work Act 1974.

2. The statutory concept of risk required no further paraphrase. Following R v Chargot Ltd (trading as Contract Services) and Others [2007] EWCA Crim 3032, the prosecution had to prove a real risk rather than a fanciful or hypothetical one. The boundary is fact-sensitive, but a jury must be directed to draw it by considering the relevant evidence.

3. Relevant indicators included the absence of previous accidents in repeated comparable circumstances, the lack of any defect in the construction of the steps, the safety history of the playground, and the fact that a young child slipping, tripping or jumping from one level to another may be an ordinary incidence of everyday life. None was conclusive, but on the evidence all pointed against a real risk created by the school’s conduct.

4. The burden under section 40 arose only after the prosecution had established such a risk. As that threshold was not met, reasonable practicability did not arise. The trial judge was entitled to leave the case at the close of the prosecution evidence, but after all the evidence it should have been withdrawn from the jury. A defendant’s costs order was made both on appeal and below.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2008] EWCA Crim 1271.
• Mold Crown Court: On 31 July 2007, the appellant was convicted by an 11:1 majority of an offence under section 3(1) of the Health and Safety at Work Act 1974.