Winterton v R.

In gross negligence manslaughter, the knowledge available and the risk of death must be assessed objectively and prospectively at the time of the alleged breach. The assessment must not use hindsight derived from the fatal outcome. Where a person with a continuing safety duty either ignores an obvious danger or fails to see danger that should have been apparent from the facts then available, a jury may find that the person should have known of the serious and obvious risk of death. The factual setting remains critical when applying R v Honey Rose [2017] EWCA Crim 1168.

The appellant, a construction-site manager and director, was convicted at Northampton Crown Court of gross negligence manslaughter after a labourer died when an unsupported, near-vertical drainage trench collapsed. He was also convicted of offences under sections 7 and 37 of the Health and Safety at Work etc Act 1974.

On appeal, he challenged the refusal of his submission of no case to answer and contended that the jury had wrongly been permitted to find that he should have known that the excavation posed a risk of death. He relied on R v Honey Rose [2017] EWCA Crim 1168. The central issue was whether the direction applied an impermissible hindsight-based standard rather than the required prospective assessment at the time of breach.

Disposition

1. The court dismissed the renewed application for permission to appeal against conviction and dismissed the appeal. There was sufficient evidence on which a properly directed jury could find that the appellant was actually aware of the dangerous excavation and of the serious risk of death. Whether his negligence was gross enough to be criminal was for the jury.

2. The court applied the ratio of R v Honey Rose [2017] EWCA Crim 1168. Available knowledge and risk must be judged objectively and prospectively at the time of breach, not by hindsight based on what would have been discovered had the duty been performed. The factual matrix is critical.

3. On the evidence, the trench’s dangerous condition and the risk of death were apparent during the excavation. The appellant’s safety duty was continuous. Its breach was ongoing once the trench required support or battering and workmen were required to enter it or work beside it. The jury could therefore conclude either that he saw and ignored the danger, or that he failed to see what should have been obvious to a person in his position.

4. The case was unlike R v Honey Rose and R v Rudding [2016] EWCA Crim 741, where the relevant professionals had not been alerted by the facts available at the time to a serious and obvious risk of death. It was analogous to the visible warning signs considered in R v Adomako (1994) 98 Cr App R 282 and R v Misra and Srivastava [2005] 1 Cr App R 21.

5. The trial judge’s route-to-verdict question, asking whether the appellant knew or should have known of the dangerous method of excavation, was lawful on these facts. The unchallenged directions on the separate statutory health and safety offences did not confuse the jury about the elements of gross negligence manslaughter.

• Court of Appeal (Criminal Division) — dismissed the renewed application for permission to appeal against conviction and dismissed the conviction appeal.
• Crown Court at Northampton — on 7 June 2017, convicted the appellant of gross negligence manslaughter and health and safety offences. On 30 June 2017, imposed four years’ imprisonment for manslaughter, with concurrent sentences for the statutory offences.